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>- 


DUTIES 


OF 


SHERIFFS  AND  CONSTABLES. 


PARTICULARLY   UNDER  THE    PRACTICE  IN    CALIFORNIA 
AND  THE   PACIFIC  STATES  AND  TERRITORIES. 


PRACTICAL  FORMS  FOR  OFFICIAL  USE. 


W  .    S  .     H  A  R  L  O  \\^ . 


(Second  edition.) 


RKVISKD    AND    KDITEH    B^■ 


KREE)    L.  BUTTON. 


.SAN  FRANCISCO: 
BANCROFT-WHITNEY  COMPANY, 

\.A\\    PrBMSHERS  AND  LAW   BOOKSKLLHRS. 

1895. 

ATTO.^NEY-AT-LAW 

EUGENE,      -      OREGON. 


T 

\89S 


Entered  according  to  Act  of  Congress,  in  tlie  year  1S94,  by 

W.   S.  HARLOW, 

In  llie  Office  of  the  Librarian  of  Congress  at  Washington. 


t'ACit'ic  Press  Pdblismini;  Co., 
I'rinterii,  F-'nKravcrs,  Kleclrolypers,  Binders, 

OAKLAND,  CAL. 


PREFACE  TO  THE  FIRST  EDITION. 

In  the  preparation  of  this  volume  the  author  has  aimed  to 
furnish,  as  a  guide  to  sheriffs  and  constables,  the  laws  of  the 
State  of  California  relating  to  their  official  duties,  with  such  inter- 
pretations of  those  laws  as  have  been  made  by  the  Supreme 
Court  of  California,  together  with  such  observations  and  sug- 
gestions concerning  the  duties  of  officers  as  the  writer  has  stored 
up  in  an  experience  of  nearly  ten  years  of  uninterrupted  service 
in  the  sheriff's  office  in  this  State.  W.  S.    Harlow. 

Oakland,  CaL,  Dec.  t,  1884. 


PREFACE  TO  THE  SECOND  EDITION. 

The  first  edition  of  this  work  was  particularly  adapted  to  the 
practice  in  California,  the  references  being  to  the  codes  and 
decisions  of  that  State  only.  In  the  present  edition,  while  the 
provisions  of  the  California  law  have  been  retained  as  a  basis, 
the  scope  of  the  work  has  been  extended  by  the  addition  of  ref- 
erences to,  and  in  some  cases  quotations  from,  the  corresponding 
laws  of  the  other  Pacific  States  and  Territories,  which  it  is  felt 
will  add  greatly  to  the  usefulness  of  the  work.  New  chapters 
have  been  added,  covering  the  subjects  of  "  Exemptions," 
"Fixtures,"  and  "  Fraudulent  Transfers."  The  text  has  been 
rewritten,  and  largely  amplified  on  nearly  every  subject  treated, 
and  the  whole  work  has  been  rearranged.  The  number  of  sec- 
tions has  been  almost  doubled,  the  additions  being  taken  up,  to 
a  great  extent,  by  recent  decisions  and  by  code  provisions  not 
incorporated  in  the  former  edition. 

While  the  result  of  another  ten  years'  active  experience  of  the 
author  in  the  sheriff's  office  has  been  given  to  this  work,  my  aim, 
in  the  present  revision,  has  been  to  make  it  not  only  a  valuable 
one  for  the  sheriff  and  constable,  but  also  for  the  practicing  attor- 
ney, as  to  all  matters  with  which  these  officers  have  to  deal. 

Fred  L.  Button, 

Oakland,  Cal.,  Jan.  /,  iSg^. 


TABLE  OF  CONTENTS. 


Sections. 

Chap. 

I. 

Origin  and  General  Duties, 

1-3 

Chap. 

II. 

Sherifif — General  Regulations, 

4-92 

Chap. 

III. 

Constables,         -         .         .         - 

93-97 

Chap. 

IV. 

Summons, 

-       98-132 

Chap. 

V. 

Subpoenas  and  Citations,     - 

133-155 

Chap. 

VI. 

Arrest  and  Bail, 

-     156-175 

Chap. 

VII. 

Claim  and  Delivery,   - 

176-197 

Chap. 

VIII. 

Injunction,     -         .         .         - 

-     198-201 

Chap. 

IX. 

Attachment — Generally, 

202-231 

Chap. 

X. 

"          — Personal  Property, 

-     232-322 

Chap. 

XI. 

— Real  Property, 

323-338 

Chap. 

XII. 

Executions — Generally,  - 

-     339-398 

Chap. 

XIII. 

"          — Personal  Property, 

399-435 

Chap. 

XIV. 

"         — ^Real  Property,    - 

-     436-479 

Chap. 

XV. 

E.xemption  from  Execution, 

480-532 

Chap. 

XVI. 

Redemption  from  Execution  Sale, 

-     533-563 

Chap. 

XVII. 

Sheriff's  Deeds, 

564-575 

Chap. 

XVIII. 

Foreclosure,    -         -         -         - 

-    576-590 

Chap. 

XIX. 

Fraudulent  Transfers, 

591-607 

Chap. 

XX. 

Fixtures,         -         .         .         . 

-     608-622 

Chap. 

XXI. 

Suits  against  Sheriffs, 

623-656 

Chap. 

XXII. 

Writ  of  Assistance, 

-     657-665 

Chap. 

XXIII. 

Writ  of  Restitution,    - 

666-680 

Chap. 

XXIV. 

Arrests,           .         .         .         . 

-     681-715 

Chap. 

XXV. 

Habeas  Corpus,           .         .         . 

716-723 

Chap. 

XXVI. 

Fugitives  from  Justice,  - 

-     724-730 

Chap. 

XXVII. 

Rewards,    -         -         .         -         - 

731-734 

Chap. 

XXVIII. 

Search  Warrants,    - 

-     735-741 

Chap. 

XXIX. 

County  Jail,         -         .         -         - 

742-765 

Chap. 

XXX. 

Fees  and  Salaries, 

-     766-792 

Chap. 

XXXI. 

Sheriffs'  and  Constables'  Forms, 

793-878 

CHAPTER  i: 

ORIGIN    AND    GENERAL    DUTIES. 

§     1.  Origin  of  the  Office. 

i^     2.  Duties  at  Common  Law. 

i:^     3.   Duties  in  the  United  States. 

v^  I.  Origin  of  the  Office. — The  office  of  sheriff 
is  one  of  great  antiquity,  one  of  the  most  ancient  of  all 
those  existino-  under  our  form  of  eovernment.  The 
word  "sheriff"  has  its  origin  in  two  Saxon  words, — 
scir,  denoting  shire  or  county,  and  gerefa,  reeve  or 
bailiff  When  the  British  Kingdom  was  first  subdi- 
vided into  counties  or  shires,  the  custody  of  each  shire 
is  said  to  have  been  committed  to  an  earl,  whose  dep- 
uty was  known  in  Latin  as  vice-comes.  When  the  earl, 
by  reason  of  other  high  employments,  became  relieved 
of  all  active  duty  as  to  the  affairs  of  the  county,  his 
labor  was  laid  on  the  sheriff,  who  became  the  repre- 
sentative of  the  king,  and  was  the  "first  man  of  the 
county,"  superior  in  rank  to  any  nobleman  within  its 
limits,  during  his  term  of  office.  ( i  Blackstone,  pp. 
339,  343.)  Originally  the  sheriffs  duties  were  neces- 
sarily both  ministerial  and  judicial,  but  in  later  years, 
by  relegation  of  the  judicial  functions  to  the  various 
courts,  his  essential  and  appropriate  duties  have  been 
as  "keeper  of  the  king's  peace,  ministerial  officer  of 
the  superior  courts  and  king's  bailiff,"  although  he  has 
still  continued  to  exercise,  to  some  extent  and   in  cer- 


|§   I,.    2  SHERIFFS    AND    CONSTABLES. 

tain  cases,  the  powers  of  a  judge.  In  Scotland  the 
sheriff  is  still  properly  a  judge,  but  with  limited  minis- 
terial powers,  and  in  London  he  holds  what  is  known 
as  the  Sheriff's  High  Court,  having  cognizance  of  cer- 
tain personal  actions. 

§  2,     Duties  at  Common  Law.— The  sheriff  is  the 

chief  executive  officer  of  the  county.  At  common  law 
It  was  his  duty  to  execute  all  process  that  issues  from 
its  courts,  carrying  into  effect  their  judgments  within 
his  own  county,  except  where  he  is  a  party,  in  which 
case  the  coroner  acts  in  his  stead.  It  is  also  his  duty 
to  take  charge  of  all  prisoners  pending  trial,  and  to 
execute  the  sentence  of  the  court,  to  take  charge  of 
the  county  jail  and  protect  it  against  all  rioters,  and  to 
seize  and  take  charge  of  all  escheats,  wrecks,  estrays, 
and  the  like.  He  is  the  chief  conservator  of  the  public 
peace,  and  it  is  his  duty  not  only  to  preserve  the  peace, 
but  to  apprehend  and  commit  to  prison  all  persons 
who  break  the  peace  or  attempt  to  do  so,  and  also  to 
pursue  and  arrest  criminals  and  escapes,  calling  the 
posse  comitatus,  if  necessary  in  the  execution  of  these 
or  any  of  his  duties.  At  common  law  he  also  pos- 
sessed extensive  judicial  functions,  in  summoning 
sheriff's  juries  and  holding  courts  of  inquiry  to  esti- 
mate damages  or  determine  ownership  ;  but  this  class 
of  powers  is,  in  this  country,  greatly  limited,  or  entirely 
done  away  with,  by  the  various  statutory  provisions 
prescribing  his  powers  and  duties.  His  jurisdiction  is 
g(tn<'rally  bounded  b)  his  own  county,  but  he  ma)'  pur- 
sue escapes  and  pc-rtorm  mere  ministerial  acts  out  of 
the  county.  {lUmvicrs  Law  Dictionary,  Title  '"  Slicr- 
iff^ :''   .-I"/,  nixt  I'^iif^.  h'^iicyc.  Law,  vol.  22,  p.  ^2^.) 


SlIKklll'S    AND    CONSTABLES.  ^  3 

^  3.  Duties  in  the  United  States. — In  our  coun- 
try the  duties  of  the  sheriff  are,  in  most  States,  pre- 
scribed by  code  or  statutory  provisions,  but  are  sub- 
stantially the  same  as  at  common  law.  Some-  of  the 
common  law  powers  and  duties  have  been  curtailed  or 
entirely  taken  away,  such  as  judicial  powers  and  duties 
as  to  estrays,  and  other  special  powers  and  duties  have 
been  added,  such  as  receiverships  in  insolvency  cases, 
and  the  like. 


CHAPTER 


SHERIFF — GENERAL  REGULATIONS. 


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27. 

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29. 

$i 

30- 

Who  Are  Eligible. 

Election  and  Term  of  Office. 

Oath  of  Office. 

Official  Bond. 

Special  Liability  on  Bond. 

Bond  of  Ex-officio  Officer. 

Assuming  Office  without  Having  Qualified. 

Exercising  Functions  of  Office  Wrongfully. 

Consolidation  with  Tax  Collector. 

Qualifications  and  Appointments  of  Deputies. 

Oath  and  Bond  of  Deputy. 

Powers  and  Duties  of  Deputies. 

Deputies  for  New  Courts — Salary. 

Liability  for  Acts  of  Deputy. 

Buying  Appointments  to  Office. 

Taking  Rewards  for  Deputation. 

Residence,  Oftice  and  Office  Hours. 

Records  Open  to  Inspection. 

General  Duties. 

Process  and  Notice  Defined. 

Resistance  to  Process-Posse  Comitatus. 

.Sherifi"  to  Act  as  Court  Bailiff. 

.Summoning  jurors  and  Grand  Jury. 

Diligence  Requireil  in  .Servic*'  of  Process. 

Liability  for  Delay. 

.Specially  Conferr(;d  Powers  and  Duties. 

Attendance  ujjon  .Supervisors. 

IVocess  of  Court-Martial. 

Receivershij)  in   Insolvency  Cases. 


§ 

31- 

§ 

32. 

§ 

33. 

?i 

34- 

§ 

35- 

§ 

36. 

§ 

37' 

§ 

3S. 

§ 

39- 

§ 

40. 

§ 

41. 

§ 

42. 

§ 

43. 

§ 

44. 

§ 

45- 

§ 

46. 

§ 

47- 

§ 

48. 

§ 

49. 

^ 

5c. 

§ 

51- 

§ 

52. 

§ 

53- 

s 

5^. 

§ 

55- 

>^ 

5^'- 

s 

57- 

§ 

58- 

s 

59- 

§ 

60. 

s 

61. 

§ 

62. 

§ 

63- 

§ 

64. 

§ 

65- 

§ 

66. 

§ 

67. 

§ 

68. 

§  69. 

§ 

70. 

§ 

71- 

GENERAL    REGULATIONS. 

Powers  and  Duties  as  Receiver  and  Assignee. 
Duties  as  to  Wrecks. 

Removal  of  Intruders  on  State  Waste  Lands. 
To  Provide  Rooms  for  Courts  and  Judges — When. 
Sheriff  as  Auctioneer. 
Prevention  of  Offenses. 
Prevention  of  Duels. 
Suppression  of  Riots. 

Remaining  at  Place  of  Riot  after  Warning. 
Neglect  to  Disperse  Rioters. 
Prosecution  of  Gamblers. 
Officer  Must  Not  Act  as  Attorney. 
May  Administer  Oaths. 
Payment  of  Moneys  to  Treasurer. 
Sheriffs  to  Give  Dead  Bodies  to  Physicians. 
Food  and  Lodging  for  Juries. 
Embezzlement  and  Falsification  of  Accounts. 
Larceny,  Mutilation  or  Destruction  of  Records. 
Breach  or  Omission  of  Duty. 
Asking  or  Receiving  Bribes. 
False  Certificates. 
Assaults  by  Officers. 
Examination  by  Supervisors. 
Sheriff's  Badges. 

Direction  to  Sheriff  Must  Be  in  Writing. 
When  Sheriff  Justified  in  Executing  Process. 
Officer  to  Exhibit  Process. 
Service  on  Sheriff,  How  Made. 
Return  of  Process  from  Another  County. 
Return  Prima  Facie  Evidence. 
Penalty  for  Non-return  of  Process,  etc. 
Liable  for  Refusing  to  Levy. 
Neglect  or  Refusal  to  Pay  over  Moneys. 
Receipt  of  Writ  on  Holiday- 
Service  of  Writs  by  Telegraph. 
Coroner  to  Execute  Process  when  Sheriff  a  Party. 
Elisors  to  Act  in  Cases  Designated. 
Fees  of  Coroner  or  Elisor. 
Vacancies. 

When  Vacancy  Exists — Generally. 
Resignation — to  Whom  Sent. 


§§  4.  5 

^ 

72. 

§ 

73- 

§ 

74- 

§ 

75- 

§ 

76. 

1 

77- 

1  78. 

§ 

79- 

§ 

80. 

§ 

81. 

1 

82. 

§ 

83- 

§  84. 

§  85. 

§ 

86. 

§ 

87. 

§ 

88. 

§ 

89. 

S 

90. 

GENERAL    REGULATIONS. 

Removal  from  Office  by  Summary  Proceedings. 

Accusation  by  Grand  Jury. 

Absence  from  the  State. 

Conviction  of  Certain  Offenses. 

Withdrawal  of  Sureties. 

How  Vacancy  Is  Filled. 

Not  to  be  Interested  in  Certain  Contracts. 

Not  to  Purchase  or  Sell  at  Certain  Sales. 

Not  to  Deal  in  Script,  etc. 

Penalty  for  Violation. 

Expiration  of  Term — Execution  of  Process. 

Unfinished  Business,  Compensation  of  Successor. 

To  Surrender  Books,  etc.,  to  Successor. 

Resisting  Public  Officers. 

Justifiable  Homicide  by  Public  Officers. 

Retaking  Goods  from  Officer. 

Giving  or  Offering  Bribes  to  Officers. 

Fish  Nets — Confiscation  Unauthorized. 

Computing  Time. 
§91.     When  Act  Falls  on  Holiday 
^  92.     Legal  Holidays. 


§  4.  Who  Are  Eligible. — No  person  is  eligible  to 
office  who,  at  the  time  of  his  election,  is  not  of  the  age 
of  twenty-one  years,  a  citizen  of  the  State  and  an 
elector  of  the  county.  {Califoi^nia.  Sec.  ^6  Co.  Govt. 
J) ill;  Statutes  1 8gj,  p.  j66.)     Compare: 

Arizona.     Sec.  ^5<j?  Revised  Statutes,  i88y. 

Colorado.     Sec.  10,  Art.  XIV  Constitution. 

Idaho.     Sec.  18 10  Revised  Statutes,  188'/. 

Nevada.     Sec.  idjy  General  Statutes,  iS8j. 

Oregon.     Sec.  2j8()  I  fill  s  Codes,  i8g2. 

Utah.     Sees.  280  i,  p.  j2g  I  Conip.  Laius,  1888. 

Washington.     Sec.  j>//,  /  I  fills  Codes,  i8gi. 

%  5.     Election  and  Term  of  Office.-  Ihe  sheriff 

is  elected  at  ihc  general   Stale  election  in   November, 
for  a  term   of    four  years,   and    takes  office  at  twelve 


GENERAL    RE(;ULATIONS.  §§  5»   ^ 

o'clock  meridian  on  the  first  Monday  after  the  first  day 
of  January  next  succeeding  his  election.  He  holds  his 
office  until  his  successor  is  elected  and  qualified.  {^Cal- 
ifornia. Sec.  60,  Co.  Govt.  Bill;  Statrttes  ^Sgj,  p.  jdy. ) 
Compare: 

Arizona.     Sec.  46^  Revised  Statutes,  iSSy. 

Colorado.     Sec.  8,  Art.  XIV,  Constitution. 

Idaho.     Sec.  18 14  Revised  Statides,  188^. 

Montana.     Sec.  84g,  p.  8y2,  Co7npiled  Stattctes,  i88j. 

Nevada.  Sees.  i6j6,  1644,  16^2,  21  ig.  General 
Statutes,  1885. 

Oregon.  Sees.  2j88,  2jgo,  2jg6  Hill's  Codes,  i8g2; 
Art.   VII,  Sec.  16,  Constitution. 

Utah.     Sec.  loj,  p.  2'/g,  I  Couip.  Laws,  1888. 

Washington.     Sees.  168,  J24  I  HiW s  Codes,  i8gi. 

\  6.  Oath  of  Office. — Before  entering  on  the  du- 
ties of  his  office,  the  sheriff  must  take  and  subscribe  the 
following-  oath:  "I  do  swear  [or  affirm]  that  I  will  sup- 
port the  Constitution  of  the  United  States  and  the 
Constitution  of  the  State  of  California,  and  that  I  will 
faithfully  discharge  the  duties  of  the  office  of  sheriff 
according  to  the  best  of  my  ability."  This  oath  may 
be  taken  before  any  officer  authorized  to  administer 
oaths,  and  must  be  subscribed  and  filed  with  the  county 
clerk  within  ten  days  after  he  has  notice  of  his 
election,  or  before  the  expiration  of  fifteen  days  from 
the  commencement  of  his  term  of  office,  when  no  such 
notice  has  been  given.  {California.  Sees.  704,  yoy, 
yo8,  and  yog  Pol.   Code.)     Compare: 

Arizona.     Sees.  48 j,  jo6y-  yo  Rev.  Stats.,  i88y. 

Colorado.  Mills  Ann.  Stats.,  i8gi.  Sec.  gjT;  Vol. 
I,  p.  jj^,  Sees.  468-g. 

Idaho.     Sees,  j^o,  j>5j>  4  Revised  Statutes,  r88y. 


§§  6,    7  GENERAL    REGULATIONSj 

Montana.     Sec.  io6'j,p.  gjg,  Comp.  Stats.,  i88j. 

Nevada.  Sees.  2120,  1661-2,  lyjj,  i6^y-8  General 
Statutes,  188^. 

Oregon.     Sec.  2jgo  Hill's  Codes,  i8g2. 

Utah.  Sec.  24,  p.  122;  Sec.  104,  p.  2jg,  I  Comp. 
Laws,  1888. 

\  7.  Official  Bond. — The  sheriff  must  give  an 
official  bond  in  the  amount  prescribed  by  the  Board  of 
Supervisors,  which  bond  must  be  approved  in  writing- 
by  the  judge,  or  judges,  if  there  be  more  than  one,  of 
the  Superior  Court,  recorded  in  the  office  of  the  county 
recorder  and  filed  in  the  office  of  the  county  clerk 
within  the  time  prescribed  for  filing  his  oath  of  office. 
The  condition  of  the  bond  must  be  that  the  principal 
will  well,  truly  and  faithfully  perform  all  official  duties 
then  required  of  him  by  law,  and  also  all  such  addi- 
tional duties  as  may  be  imposed  on  him  by  any  law  of 
the  State  of  California.  Such  bond  must  be  signed  by 
the  principal  and  at  least  two  sureties.  All  persons 
offered  as  sureties  shall  be  examined,  on  oath,  touch- 
ing their  qualifications,  and  no  person  can  be  admitted 
as  surety  on  any  such  bond  unless  he  is  a  resident  and 
freeholder  or  householder  within  the  State,  and  is 
worth  in  real  or  personal  property,  or  both,  situate  in 
this  State,  the  anicjunt  of  his  undertaking,  over  and 
above  all  sums  for  which  he  is  already  liable,  exclusive 
of  projjerty  exempt  from  execution  and  forced  sale. 
Neither  the;  count\'  cktrk,  tax  collector,  treasurer, 
n.'cordcr,  auditor,  assessor,  district  attorney,  or  a  mem- 
Ijer  of  the  Ikjard  of  Supervisors  of  the  same  county, 
shall  Im-  acc(;j)te(l  as  a  surety.  {California.  Sec.  6g 
Co.  (ioi't.  Bill,  Stats.  /8gj,p.  j68;  also  Sees,  g^y,  g^2, 
(J././.  755  I'ol.  Code.)     Compare: 


tJENERAL    RE(;ULATION.S,  ^^   J-\0 

Arizona.     Sees.  ^jg-^Sj,  jo'/2'~8i,  Rev.  Stats.,  iS8j. 

Colorado.     Sees.  848-g,  gji  Mills  Ann.  Stats.,  i8gi. 

Idaho.     Sees,  jgo,  jg2''8,  1828  Rev.  Stats.,  i88y. 

Montana.     Sees.  84g~8^o,p.  8^2,  Comp.  Stats.,  188'/. 

Nevada.  Sees.  2120,  id^y,  i'/j8-4g,  f/SS  General 
Statutes,  188^. 

Oregon.     Sees.  2jg2,  2jg^  Hill' s  Codes,  i8g2. 

Utah.  See.  104,  p.  2jg;  Sees.  2/1-2,  pp.  32J-8,  I 
Compiled  Laws,  1888. 

IVashington.  Sees.  168,  lyi,  2goo-ii  I  HilFs 
Codes,  i8gi. 

§  8.    Special  Liability   in  Bond.— "Whenever, 

except  in  criminal  prosecutions,  any  special  penalty, 
forfeiture,  or  liability  is  imposed  on  any  officer  for  non- 
performance or  malperformance  of  official  duties,  the 
liability  therefor  attaches  to  the  official  bond  of  such 
officer,  and  to  the  principal  and  sureties  thereon." 
[California.  See.  64  Co.  Govt.  Bill,  Stats.  i8gj,p.  36'/.) 
Idaho.     See.  1823  Revised  Statutes,  188'j. 

\  9.    Bond  of    Ex-Officio    Officer.— When,    by 

statute,  the  sheriff  is  ex-offieio  tax  collector,  he  must 
give  a  separate  bond  for  each  office.  {People  vs.  Burk- 
hart,  yd  Cal.  606.) 

§  10.  Assuming  Office  without  Having  Qual- 
ified.— "Every  person  who  exercises  any  function  of  a 
public  office  without  taking  the  oath  of  office,  or  with- 
out giving  the  required  bond,  is  guilty  of  a  misde- 
meanor."   {California.   See.  63  Penal  Code.)    Compare: 

Arizona.     See.  g8  Penal  Code. 

Colorado.     See.  I2g6  Mills'  Ann.  Stats.,  i8gi. 

Utah.     See.  43g3  Comp.  Laws,  1888. 

Washington.     See.  i8y  Penal  Code. 


§§  II,  12  (;eneral  regulations. 

§  II.  Exercising  Functions  of  Office  Wrong- 
fully.— "Every  person  who  willfully  and  knowingly 
intrudes  himself  into  any  public  office  to  which  he  has 
not  been  elected  or  appointed,  and  every  person  who, 
having .  been  an  executive  officer,  willfully  exercises 
any  of  the  functions  of  his  office  after  his  term  has  ex- 
pired, and  a  successor  has  been  elected  or  appointed 
and  has  qualified,  is  guilty  of  a  misdemeanor."  [Cali- 
fornia.    Sec.  75  Penal  Code.)     Compare: 

Arizona.     Sec.  io8  Penal  Code. 

Colorado.     Sec.  2g6  Mills  Ann.  Stats.,  i88y. 

Idaho.     Sec.  6j88  Revised  Statutes,  188'/. 

Montana.     Sec.  ijj,  p.  ^j^,  Comp.  Stats.,  i88j. 

Utah.     Sec.  ^^02  Comp.  Laivs,  1888. 

Washington.     Sec.  186  Penal  Code. 

\  \2.    Consolidation    with    Tax    Collector.— 

In  counties  where  the  Board  of  Supervisors,  by  proper 
ordinance,  may  so  elect,  the  duties  of  sheriff  and  tax 
collector  may  be  consolidated;  and  in  counties  where 
the  duties  of  said  officers  have  been,  or  may  hereafter 
be,  consolidated,  in  either  manner  above  designated, 
the  Board  of  Supervisors  thereof,  by  proper  ordinance, 
may  elect  to  separate  the  duties  so  consolidated,  and 
reconsolidate  them  in  any  other  manner  above  pro- 
vided, or  may  separate  said  duties  without  reconsolida- 
tion,  and  provide  that  the  duties  of  each  office  shall  be 
performed  by  a  separate  person,  whenever,  in  their 
discretion,  the  public  interest  will  be  best  subserved 
thereijy.  When  such  offices  are  united  and  consoli- 
dated, the  person  elected  to  fill  the  offices  so  united 
and  consolidated  must  take  the  oath  and  ijfive  the  bond 
recjuired  f(M-  (*ach,  discharge  all  the  duties  pertaining 
to  each,  and   receive  the  compensation  affixed  to  the 


GENERAL    REGULATIONS.  vji^   1 3,   14 

offices.  {California.  Sees,  ^y,  59  Co.  Govt.  Bill, 
Statutes  i8gj,  pp.  jdd-y.) 

Arizona.     Sec.  460  Revised  Statutes,  iSSy. 

§  1 3.  Qualifications  and  Appointment  of  Dep- 
uties.— The  sheriff  may  appoint  as  many  deputies  as 
may  be  necessary  for  the  prompt  and  faithful  discharge 
of  the  duties  of  his  office.  Such  appointment  must  be 
made  in  writing,  and  filed  in  the  office  of  the  county 
clerk;  and  until  such  appointment  is  so  made  and  filed, 
and  until  such  deputy  shall  have  taken  the  oath  of 
office,  no  one  shall  be  or  act  as  such  deputy.  Depu- 
ties must  be  citizens  of  the  United  States.  No  county 
officer  must  be  appointed  or  act  as  the  deputy  of 
another  officer  of  the  same  county,  except  in  cases 
where  the  pay  of  the  officer  so  appointed  amounts  to 
a  sum  less  than  seventy-five  dollars  per  month.  [Cal- 
ifornia,  Sec.  60,  Co.  Govt.  Bill,  Stats.  i8gj,  p.  jdy; 
Stats.  1880,  p.  2j;  also  Sec.  84.J  Pol.  Code.)     Compare: 

Arizona.     Sec.  ^.gy  Revised  Statutes,  i88y. 

Colorado.     Sees.  8^0,  852-j  Mills  Ann.  Stats.,  i8gi. 

Idaho.     Sec.  181^  Revised  Statutes,  i88y. 

Montana.     Sees.  8^1-2,  p.  8y2,  Conip.  Stats.  188^. 

Nevada.     See.  21 21  General  Statutes,  188^. 

Oregon.     Sees,  ggj,  1026  Hills  Codes,  i8g2. 

Utah.     See.  10^,  p.  2'jg,  I  Conip.  Laws,  1888. 

Washington.     See.  yg  II  HilVs  Codes,  i8gi. 

%  14.    Oath  and  Bond  of  Deputy.— All  deputies 

must,  within  ten  days  after  receiving  notice  of  their 
appointment,  take  and  file  an  oath  in  the  manner 
required  of  their  principals,  and  may  be  required  to 
give  an  official  bond  in  a  sum  to  be  fixed  by  the  sheriff 
[California,  Sees,  gio,  g8^  Pol.  Code.) 


|§   15-17  GENERAL    REGULATIONS. 

Arizona.     Sees.  J061,  joji  Reviseel  Statutes,  i88j. 
Colorado.     Sec.  gj2  Mills  Ann.  Stats.,  iSSy. 
Idaho.     Sees,  j^y,  424  Revised  StattUes,  iSSy. 

I  15.    Powers   and   Duties   of   Deputies. — A 

deputy  has  the  same  powers  and  duties  as  his  principal, 
and  whenever  the  official  name  of  any  principal  officer 
is  used  in  any  kwvv  conferring  power,  or  imposing  duties 
or  liabilities,  it  includes  deputies.  {California.  Sec. 
62,  Co.  Govt.  Bill,  Statutes  iSgj,  p.  jdy;  also  Sec.  86^, 
Pol.  Code.) 

Arizona.     Sec.  jojg  Revised  Statutes,  188'j. 

Idaho.     Sec.  1818  Revised  Statutes,  188 j. 

Montana.     Sec.  8^^,  p.  8yj,  Conpiled  Statides,  188'j. 

Oregon.     Sec.  gg^  Hill's  Codes,  i8g2. 

Washington.     Sec.  i6g  I  Hills  Codes,  i8gi. 

I  16.    Deputies  for  New  Courts  -Salary.— In 

counties  where  the  number  of  judges  of  the  Superior 
Court  has  been  increased  since  January  i,  1887,  or 
shall  thereafter  be  increased,  the  sheriff  is  allowed  an 
additional  deputy  for  each  additional  judge,  his  salary 
to  be  $125  per  month,  payable  out  of  the  county  treas- 
ury.    {California.     Statutes  i8gj,  p.  ^oy.) 

i  1 7.    Liability  for  Acts  of  Deputy.  —The  sheriff 

and  his  sureties  are  responsible  for  all  official  neglect  or 
misconduct  of  his  deputies,  and  also  for  his  acts  not 
recjuircd  by  law,  where  he  assumes  to  act  under  color 
or  by  \  irtuc  of  his  office.  (5  Am.  &  J'^ng.  line.  Law, 
p.  6j4.)  A  trespass  committed  by  a  deputy  sheriff,  in 
his  official  character,  is  considered  in  law  as  committed 
directly  and  jx'rsonalU'    by  his  princi[)al,  and   the  latter 


GENERAL    REGULATIONS.  ^^^    l8-20 

is  liable  therefor.  {Hirsch  vs.  Rand,  jg  Cal.  ji§;  Whit- 
ney vs.  Butterjield,  ij  Cal.  JJS-)     Compare: 

A 7^2 zona.     Sees,  ^gy,  J0j2  Revised  Statutes,  iSSj. 

Colorado.     Sees.  8^2,  860,  Mills  Ann.  Statutes,  i8gi. 

\  18.  Buying  Appointments  to  Office. — "Ev- 
ery person  who  gives  or  offers  any  gratuity  or  reward, 
in  consideration  that  he  or  any  other  person  shall  be 
appointed  to  any  public  office,  or  shall  be  permitted  to 
exercise  or  discharge  the  duties  thereof,  is  guilty  of  a 
misdemeanor."     [California.     See.  jj  Penal  Code.) 

Arizona.     Sec.  106  Penal  Code. 

Idaho.     See.  6j8/  Revised  Statutes,  i88j. 

Utah.     See.  4400  Comp.  Laws,  1888. 

§  19.  Taking  Rewards  for  Deputation.— "  Ev- 
ery public  officer  who,  for  any  gratuity  or  reward,  ap- 
points another  person  to  a  public  office,  or  permits  an- 
other person  to  exercise  or  discharge  any  of  the  duties 
of  his  office,  is  punishable  by  a  fine  not  exceeding  five 
thousand  dollars,  and,  in  addition  thereto,  forfeits  his 
office,  and  is  forever  disqualified  from  holding  any  office 
in  this  State,"     {CalifoT-nia.     Sec.  7^  Penal  Code.) 

Arizona.     Sec.  loj  Penal  Code. 

Idaho.     Sec.  6^8"/  Revised  Statutes,  188^. 

Utah.     Sec.  4401  Comp.  Laivs,  1888. 

\  20.    Residence,  Office  and  Office  Hours.— 

He  must  reside  and  have  his  office  at  the  county  seat, 
and  must  keep  his  office  open  for  the  transaction  of 
business  from  nine  o'clock  a.  m.  until  five  o'clock  p.  m., 
non-judicial  days  excepted.  {California.  Sees.  6j,  66, 
Co.  Govt.  Bill,  Statutes  i8gj,  p.  j6y;  Sees.  4116,  41  ig, 
Pol.  Code.)     Compare: 


§§  2  1,  2  2  GENERAL    REGULATIONS. 

Arizo7ta.     Sees,  ^jj,  ^yd  Revised  Statutes,  iSSy. 
Colorado.     Sec.  gjo  A/ills  Ann.  Statutes,  i8gi. 
Idaho.     Sees.  1822,  iS2§  Revised  Statutes,  iSSy. 
Montana.     See.  gii,p.  886,  Compiled  Statutes,  188^. 
Nevada.     See.  2i2g  General  Statutes,  188^. 
Oregon.     See.  ggi  Hill's  Codes,  i8g2. 
Washington.     See.  /c?  //  Hill's  Codes,  i8gi. 

%  2\.  Records  Open  to  Inspection. — The  pub- 
lic records  and  other  matters  in  the  office  of  the  sheriff 
are  at  all  times,  during  office  hours,  to  be  open  to  the 
inspection  of  any  citizen  of  the  State.  {California. 
See.  I0J2  Pol.  Code.) 

A^'izona.     See.  Ji2^  Revised  Statutes,  188"/. 

Colorado.     See.  gjo  Mills  Ann.  Statutes,  i8gi. 

Idaho.  ,  See.  ^5^  Revised  Statutes,  i88j. 

\  22.     General  Duties. — "The  sheriff  must: — 

"i.   Preserve  the  peace. 

"2.  Arrest  and  take  before  the  nearest  magistrate,  for 
examination,  all  persons  who  attempt  to  commit  or  who 
have  committed  a  public  offense. 

"  3.  Prevent  and  suppress  all  affrays,  breaches  of  the 
peace,  riots,  and  insurrections  which  may  come  to  his 
knowledge. 

"4.  Attend  all  courts,  except  justices',  probate,  and 
police  courts,  at  their  respective  terms,  held  within  his 
county,  and  obey  their  lawful  orders  and  directions. 

"5.  Command  the  aid  of  as  many  male  inhabitants  of 
his  county  as  he  may  think  necessary  in  the  execution 
of  thrse  duties. 

"6.  Take  charge  of  and  kecj:)  the  county  jail  and  the 
jjrisoners  therein. 

"7.    Release  on  the  record  all  attachments  of  real  prop- 


GENERAL    REGULATIONS.  %  ^3 

erty  when  the  attachment  placed  in  his  hand  has  been 
released  or  discharged. 

"8.  Indorse  upon  all  process  and  notices  the  year, 
month,  day,  hour,  and  minute  of  reception,  and  issue 
therefor  to  the  person  delivering  it,  on  payment  of 
fees,  a  certificate  showing  the  names  of  the  parties,  title 
of  paper,  and  time  of  reception. 

"  9.  Serve  all  process  and  notices  in  the  manner  pre- 
scribed by  law. 

"10.  Certify  under  his  hand  upon  process  or  notices 
the  manner  and  time  of  service,  or,  if  he  fails  to  make 
service,  the  reasons  of  his  failure,  and  return  the  same 
without  delay."  (Sec.  gj  County  Governvient  Bill, 
Statutes  i8gj,  p.  J72.)     Compare: 

A7Hzona.     Sec.  ^g6  Revised  Statutes,  iSSy. 

Colorado.     Sees.  8^^-6  Mills  Ann.  Statutes,  i8gi. 

IdaJio.     See.  iS'ji  Revised  Statutes,  iSSy. 

Montana.     Sees.  8^^-6,  p.  8jj,  Comp.  Stats,  1887. 

Nevada.     Sees.   21,  2j~^,  171 4  Gen.  Stats.,  188^. 

Oregon.  Sees.  gg6,  ggg  Hills  Codes,  i8g2;  Ai't. 
VII,  See.  16  Const. 

Utah.  Sees.  106,  116,  pp.  2yg,  281,  I  Compiled 
Laws,  1888. 

Washington.  Sec.  76  II  Hills  Codes,  i8gi;  Sec. 
i6g  I  Hill;  Sec.  207  Penal  Code. 

§  23.     Process  and  Notice  Defined. — "Process" 

includes  all  writs,  warrants,  summons,  and  orders  of 
courts  of  justice,  or  judicial  officers.  "  Notice"  includes 
all  papers  and  orders  (except  process)  required  to  be 
served  in  any  proceeding  before  any  court,  board,  or 
officer,  or  when  required  by  law  to  be  served  independ- 
ently of  such  proceeding.  {California.  Sec.  g2  Co. 
Govt.  Bill,  Stats.  i8gj,  p.  J71;  Sec.  4175  Pol.   Code.) 


§§   23a,  24  GENERAL    REGULATIONS. 

Arizona.     Sec.  ^95  Revised  StahUes,  iSSy. 
Idaho.     Sec.  iSjo  Revised  Statutes,  iSSy. 

§  23a.    Resistance  to  Process-Posse  Comitatus. 

— "When  a  sheriff,  or  other  pubhc  officer  authorized  to 
execute  process,  finds,  or  has  reason  to  apprehend  that 
resistance  will  be  made  to  the  execution  of  the  process, 
he  may  command  as  many  male  inhabitants  of  his 
county  as  he  may  think  proper  to  assist  him  in  over- 
coming the  resistance,  and,  if  necessary,  in  seizing, 
arresting,  and  confining  the  persons  resisting,  their 
aiders  and  abettors.  The  officer  must  certify  to  the 
court  from  which  the  process  issued  the  names  of  the 
persons  resisting,  that  they  may  be  proceeded  against 
in  due  time  for  their  contempt  of  court.  If  it  appears 
to  the  governor  that  the  civil  power  of  any  county  is 
not  sufficient  to  enable  the  sheriff  to  execute  process 
delivered  to  him,  he  must,  upon  the  application  of  such 
sheriff,  order  such  portion  as  shall  be  sufficient,  or  the 
whole,  if  necessary,  of  the  organized  national  guard  or 
enrolled  militia  of  the  State,  to  proceed  to  the  assist- 
ance of  the  sheriff"  {California.  Sees.  '/2j-y2^  Penal 
Code.)     {See  also  sees.  68^-§ post.) 

Arizoita.     Sees,  i lyi-j  Penal  Code. 

Colorado.     Sec.  8^6  Mills  Ann.  Statutes,  iSgi. 

Idaho.     Sees,  y 400-2  Revised  Statittes,  i88y. 

Nevada.     Sec.  ly  18-21  General  Statutes,  188^. 

Oregon.     Sec.  1648  Hills  Codes,  i8g2. 

Utah.     Sec.  44j8  Compiled  Laios,  1888. 

Montana.     Sec.  H),  p.  40  j,  Compiled  Statutes,  188'/. 

§  24.    Sheriff   to  Act   as  Court  Bailiff. — The 

sheriff,  in  aiutndance  upon  court,  must  act  as  the  crier 
thf-r^'of   call   the   partie-s  and   witn(;sses,   and   all   other 


GENERAL    REGULATIONS.  v^^   25,  26 

persons  bound  to  appear  at  the  court,  and  make  proc- 
lamation at  the  opening  and  adjournment  of  the  court, 
and  of  any  other  matter  under  its  direction.  {Cali- 
'  foT-nia.  Sec.  io6  Co.  Govt.  Bill.  Stats.  iSgj,  p.  jjj. 
Also  Sec.  22  ante.) 

AiHzona.     Sec.  ^lo  Revised  Statutes,  iSSy. 

Colo7'ado.     Sec.  8§^  Mills  Ann.  Stahites,  i8gi. 

Idaho.     Sec.  1884  Revised  Statutes,  188"/. 

Nevada.     Sec.  2124  General  Statutes,  188^. 

Utah.     Sec.  188,  p.  J04,  Compiled  Laws,  1888. 

§  25.     Summoning  Jurors  and  Grand  Jury.— 

It  is  the  duty  of  the  sheriff  to  summon  the  members 
of  all  grand  juries,  and  also  all  jurors  for  courts  of 
record,  and  he  may  summon  juries  of  inquest.  {Cali- 
fornia.    Sees.  2ig,  241  Code  Civil  P^^ocedure.) 

A^'izona.     Sees.  2ig^--j  Revised  StatiUes,  188"/. 

Colorado.     Sec.  26/j  A/ills  Ann.  StattUes,  i8gi. 

Idaho.     Sees,  jgsj,  jg6o-2,  jg66  Rev.  Stats.,  i88y^ 

Oregon.     Sec.  g62  Hill's  Codes,  i8g2. 

\  26.  Diligence  Required  in  Service  of  Pro- 
cess.— The  Supreme  Court  of  California  has  declared, 
in  the  case  of  Whitney  vs.  Butterfield,  13  Cal.  336, 
that  in  the  service  of  process  the  sheriff  is  responsible 
only  for  unreasonably,  or  not  reasonably,  executing  it ; 
that  he  is  not  bound  to  start  on  the  instant  of  receiving 
a  writ  to  execute  it,  without  regard  to  anything  else. 

"  The  sheriff's  liability  rests  on  his  breach  of  official 
duty.  As  he  is  bound  to  perform  his  duty,  so  is  he 
responsible  to  everyone  who  may  be  injured  by  his 
failure  to  discharge  it.  In  respect  to  the  execution  of 
process,  these  official  duties  are  well  defined  by  law. 
The  law  is  reasonable  in  this,  as  in  all  other  things. 


§  26  GENERAL    REGULATIONS. 

It  holds  public  officers  to  a  strict  performance  of  their 
respective  duties.  It  tolerates  no  wanton  disregard  of 
these  duties.  It  sanctions  no  negligence;  but  it  re- 
quires no  impossibilities  and  imposes  no  unconscion- 
able exactions.  When  process  of  attachment  or  exe- 
cution comes  to  the  hands  of  the  sheriff,  he  must  obey 
the  exigency  of  the  writ.  He  must,  in  such  cases,  exe- 
cute the  writ  with  all  reasonable  celerity.  Whenever 
he  can  make  the  money  on  execution,  or  secure  the 
debt  by  attachment,  he  must  do  it.  But  he  is  not  held 
to  the  duty  of  starting  on  the  instant  after  receiving  a 
writ,  to  execute  it,  without  regard  to  anything  else 
than  its  instant  execution.  Reasonable  diligence  is  all 
that  is  required  of  him  in  such  instances.  But  this  rea- 
sonable diligence  depends  upon  the  particular  facts  in 
connection  with  the  duty.  If,  for  example,  a  sheriff 
has  execution  against  A.,  and  has  no  special  instruction 
to  execute  it  at  once,  and  there  is  no  apparent  neces- 
sity for  its  immediate  execution,  it  would  not  be  con- 
tended that  he  was  under  the  same  obligfations  to  exe- 
cute  it  instantaneously  as  if  he  were  so  instructed  and 
there  were  circumstances  of  urgenc)-.  So  in  respect 
to  an  attachment.  If  an  attachment  were  sued  out  on 
the  ground  of  a  defendant's  fraud,  or  his  being  in  the 
act  of  leaving  the  State,  or  removing  his  property,  the 
very  fact  of  the  issuance  of  the  attachment,  or  the  mak- 
ing of  the  afficl;ivit,  would  seem  to  indicate  to  the  officer 
the  necessity  of  immediate  action.  But,  generally,  in 
the  absence  of  s[)ecial  circumstances,  an  attachment 
issued  for  the  s(^curity  of  a  debt,  under  the  old  statute 
railhori/ing  sucli  a  process,  does  not  stand  upon  a  more 
favorajjle  footing,  so  far  as  regards  the  necessity  of 
immediate  service,  than  an  execution. 

"It  is   true    the    statute  (Wood's   Dig.    1S3.   v^    125) 


GENERAL    REGULATIONS.  ^   26 

directs  that  the  sheriff  'shall  execute  the  writ  of  attach- 
ment without  delay ; '  but  this  was  not  intended  to 
introduce  a  new  rule.  The  expression  'without  delay' 
does  not  mean  that  the  sheriff  shall,  the  instant  he 
receives  process  of  this  sort,  lay  aside  all  other  business 
and  proceed  to  execute  it,  unless  some  special  reasons 
of  urgency  exist.  The  rule  is  thus  stated  by  the  Su- 
preme Court  of  New  York,  in  Hinman  vs.  Borden 
(lo  Wend.  367):  'A  sheriff  is  bound  to  use  all  rea- 
sonable endeavors  to  execute  process.'  It  is  true  that 
some  authorities  hold  the  rule  with  more  strictness. 
In  Lindsay's  Executors  vs.  Armfield  (3  Hawks,  N.  C.) 
the  sheriff  was  held  liable  for  not  levying  from  7th 
October  to  ist  November,  following — no  explanation 
being  offered  for  the  failure.  Mr.  Justice  Hall  says 
'  the  law  declares  it  to  be  the  duty  of  the  sheriff  to  exe- 
cute all  process  which  comes  to  his  hands,  with  the 
utmost  expedition,  or  as  soon  after  it  comes  into  his 
hands  as  the  nature  of  the  case  admits,'  and  cites  Bacon 
Abridg.  Sheriff  N.  That  author  holds  the  doctrine  in 
the  same  language  as  that  quoted.  Mr.  Justice  Hen- 
derson, in  the  case  in  Hawks,  states  the  doctrine  a  lit- 
tle different.  He  says  :  '  The  sheriff  should  proceed 
with  all  convenient  speed  to  levy  the  execution.'  The 
learned  American  editor  of  Bacon  cites,  in  support  of 
the  doctrine  of  the  text,  several  cases,  which  we  have 
examined.  None  of  them  sustain  the  rule  in  its  strict- 
ness, even  if  we  are  to  regard  the  doctrine  of  Bacon  as 
lavinor  down  a  different  rule,  so  far  as  the  liabilitv  of 
the  sheriff  is  concerned,  from  that  held  in  Wendell  and 
other  cases;  for  Bacon  says  the  'sheriff  must  not  show 
any  favor,  nor  be  guilty  of  unreasonable  delay.'  In 
Kennedy  vs.  Brent  (6  Cranch.  187)  C.  J.  Marshall 
holds  that  the  marshal  is  bound  to  serve  the  process 
as  soon  as  he  reasonably  can. 


^^  26a-2S  GENERAL    REGULATIONS. 

"The  question  of  unreasonable  delay  is  a  mixed 
question  of  law  and  fact,  each  case  depending  on  its 
own  circumstances." 

§  26a.  Liability  for  Delay. — "  If  a  sheriff  does  not 
return  a  process  or  notice  in  his  possession,  with  the 
necessary  indorsement  thereon,  without  delay,  he  is  lia- 
ble to  the  party  aggrieved  for  the  sum  of  two  hundred 
dollars,  and  for  all  damages  sustained  by  him. 

"If  the  sheriff,  to  whom  a  writ  of  execution  is  deliv- 
ered, neglects  or  refuses,  after  being  required  by  the 
creditor  or  his  attorney,  the  fees  having  first  been  paid 
or  tendered,  to  levy  upon  or  sell  any  property  of  the 
party  charged  in  the  writ,  which  is  liable  to  be  levied 
upon  and  sold,  he  is  liable  to  the  creditor  for  the  value 
of  such  property."  {California.  Sees.  g6,  gy  Co.  Govt. 
Bill;  Sees.  41  yg,  4180  Pol.  Code.) 

Arizona.     Sees.  ^00,  ^01  Revised  Statutes,  iSSy. 

Colorado.     See.  864  Mills  Ann.  Statutes. 

Idaho.      Sees.  18/4,  /8/^  Revised  Stattites,  188'/. 

Washington.     See.  lyo  I  Hill's  Codes,  i8gi. 

\  27.     Specially  Conferred  Powers  and  Duties. 

—  In  addition  to  the  general  duties  of  the  sheriff  as 
prescribed  by  the  general  statutes  relating  to  the  office, 
he  has  such  other  powers  and  duties  as  may  be  imposed 
upon  him  by  any  other  statutes,  in  the  execution  of 
which  his  services  may  be  required.  This  is  sometimes 
enacted  into  a  code  or  statutory  provision  that  "the 
sheriff  must  perform  such  other  duties  as  are  required 
of  him  by  law."  {California.  Statutes  i8gj,  p.  j'/4; 
See.  41  g J  Pol  i tie  a  I  Coile.) 

\  2.S.      Attendance    upon    Supervisors.  — 1  he 

Ikxird  of   .Su[jervis(jrs  shall   liav*!  power  to  direct  the 


GENERAL    REGULATIONS.  ^^   -9-3  I 

sheriff  to  attend,  in  person  or  by  deputy,  all  the  meet- 
ings of  the  Board,  to  preserve  order,  serve  notices,  sub- 
poenas, citations,  or  other  process,  as  directed  by  the 
Board.  [California.  Sees.  2y,  2g,  Co.  Govt.  Bill, 
Statutes  i8gj,  p.  j6o;  Sec.  404J  Political  Code.) 

Arizona.     Sec.  jgg  Revised  Statutes,  iSSy. 

Utah.     Sec.  188,  p.  J04,  Compiled  Lazos,  1888. 

I  2g.  Process  of  Court-Martial. — "  Every  sheriff 
and  constable  must  serve  all  orders,  subpoenas,  or  pro- 
cess delivered  to  him  for  that  purpose  by  any  member 
of  a  court-martial."     {California.     Sec.  2084  Pol.  Code.) 

\  30.    Receivership  in  Insolvency  Cases. — In 

California,  by  the  provisions  of  section  6  of  the  In- 
solvency Act,  upon  the  filing  of  the  petition  the  order 
of  adjudication  of  insolvency  is  made,  which  also  ap- 
points the  sheriff  a  receiver  to  take  charge  of  and  keep 
all  the  estate  of  the  debtor  until  the  appointment  of  an 
assignee.  His  oath,  undertaking,  and  powers,  as  such 
receiver,  are  reo-ulated  bv  the  creneral  laws  of  the  State 
applicable  to  receivers.     [Statutes  i8gi,  p.  5//.) 

§  31.    Powers  and    Duties  as  Receiver  and 

Assignee. — When  the  sheriff  is  appointed  by  the 
court  as  receiver  in  an  insolvency  or  other  proceeding, 
either  under  express  statutory  authority  or  under  the 
equity  powers  of  the  court,  his  powers  and  duties  are 
the  same  as  those  of  other  receivers,  and  are  either  pre- 
scribed by  the  statute  or  conform  to  the  practice  in 
equity,  as  the  case  may  be.  When  elected  assignee  in 
insolvency  cases,  his  powers  and  duties  are  prescribed 
bv  the  statute  authorizino^  the  election. 


§^  32-34  GENERAL    REGULATIONS. 

>^  32.  Duties  as  to  Wrecks. — "  The  sheriff  in  each 
county  must  give  all  possible  aid  and  assistance  to  ves- 
sels stranded  on  its  coast,  and  to  the  persons  on  board 
the  same,  and  exert  himself  to  save  and  preserve  such 
persons,  vessels,  and  their  cargoes,  and  all  goods  and 
merchandise  which  may  be  cast  by  the  sea  upon  the 
land,  and  to  this  end  may  employ  as  many  persons  as 
he  may  think  proper.  '  All  citizens  must  aid  the  sheriff 
when  required. 

"The  sheriff"  of  every  county  in  which  any  wrecked 
property  is  found,  when  no  owner  or  other  person  en- 
titled to  possession  appears,  must  take  possession  of  it 
in  the  name  of  the  people,  cause  the  value  thereof  to 
be  appraised  by  disinterested  persons,  and  keep  it  in 
some  safe  place  to  answer  the  owner's  claims,"  and  dis- 
pose of  it  only  in  the  manner  provided  by  law.  {Cal- 
ifornia.    Sees.  240 J,  2406-2418  Politieal  Coeie.) 

I  zz.    Removal  of  Intruders  on  State  Waste 

Lands. — "If  any  person,  under  any  pretense  of  any 
claim  inconsistent  with  the  sovereignty  and  jurisdiction 
of  the  State,  intrudes  upon  any  of  the  waste  or  un- 
granted  lands  of  the  State,  the  district  attorney  of  the 
county  must  immediately  report  the  same  to  the  gov- 
ern(jr,  who  must  thereupon,  by  a  written  order,  direct 
the  sheriff  of  the  county  to  remove  the  intruder;  and  if 
resistance  to  the  execution  of  the  order  is  made  or 
threatened,  the  sheriff  may  call  to  his  aid  the  power  of 
the  county,  as  in  cases  of  resistance  to  the  writs  of  the 
]je(jple."     {California.     See.  42  Pol.  Code.) 

^  34.      To    Provide    Rooms    for    Courts    and 

Judges  When,  if  suitable  rooms  for  holding  the 
Su|jerior  Courts,  ,uid  the  chambers  of  the  judges  of 
such    courts,   b('   mA    provided    in  any  county    by  the 


GENERAL    REGULATIONS.  §§  35,   36 

supervisors  thereof,  together  with  attendants,  furniture, 
fuel,  lights,  and  stationery  sufficient  for  the  transaction 
of  business,  the  courts  may  direct  the  sheriff  of  such 
county  to  provide  such  rooms,  attendants,  furniture, 
fuel,  lights,  and  stationery,  and  the  expenses  thereof 
are  a  charge  against  such  county.  {California.  Sec. 
i^/f  Code  Civil  Procedure. ) 

Under  this  statute,  the  court  can  only  require  the 
sheriff  to  provide  such  quarters  as  the  court  "presently 
requires  for  the  transaction  of  its  business,"  and  cannot 
interfere  with  a  contract  for  a  courthouse  in  course  of 
erection.  {Los  Angeles  Co.  vs.  Superior  Court,  g^ 
Cal.  j8o.) 

Colorado.     Sec.  4^^  Code  Civil  Procedure. 

\  35.    Sheriff  as  Auctioneer. — "In  any  city  or 

town  where  there  is  no  auctioneer,  the  sheriff  or  a  con- 
stable thereof  is  ex-oficio  auctioneer,  and  is  permitted 
to  sell  any  property,  real  or  personal,  at  public  auction; 
and  for  any  delinquency  as  such  ex-officio  auctioneer  he 
is  liable  on  his  official  bond."  {California.  Sec.  j2gT 
Political  Code.) 

§  36.    Prevention  of  Offenses. — It  is  the  duty  of 

the  sheriff  to  prevent  and  suppress  all  affrays,  breaches 
of  the  peace,  riots,  and  insurrections  which  may  come 
to  his  knowledore,  and  to  arrest  and  take  before  the 
nearest  magistrate,  for  examination,  all  persons  who 
attempt  to  commit  or  who  have  committed  a  public 
offense.     {California.     Sec.  gj  Co.  Govt.  Bill,  Statutes 

^^93^  P-  37^'  S^^-  ^97  Penal  Code. ) 

Arizona.     Sec.  4g6  Revised  Statutes,  i88y. 
Colorado.     Sec.  S§6  A/ills'  Ann.  Statutes,  iSgi. 
Idaho.     Sec.  737S  Revised  Statutes,  1887. 
Nevada.     Sec.  17 14  General  Statutes,  188^. 


5§  i7>   38  GENERAL    REGULATIONS. 

§  2,7.    Prevention  of  Duels. — If  the  sheriff  has 

knowledge  of  the  intention  on  the  part  of  any  persons 
to  fight  a  duel,  and  does  not  exert  his  official  authority 
to  arrest  the  party  and  prevent  the  duel,  he  is  punisha- 
ble by  fine  not  exceeding  one  thousand  dollars.  {Cal- 
ifornia.    Sec.  2 JO  Penal  Code.) 

Arizona.     Sec.  j^g  Penal  Code. 

Colorado.     Sec.  ijii  Mills  Ann.  StattUes,  i8gi. 

Idaho.     Sec.  dyi^  Revised  Statutes,  i88y. 

Nevada.     Sec.  lyo^  General  Statutes,  188^. 

Utah.     Sec.  44'jg  Compiled  Laws,  1888. 

%  38.    Suppression  of  Riots  -Posse  Comitatus. 

— "When  any  number  of  persons,  whether  armed  or 
not.  are  unlawfully  or  riotously  assembled,  the  sheriff  of 
the  county  and  his  deputies,  the  officials  governing  the 
town  or  city,  or  the  justices  of  the  peace  and  constables 
thereof,  or  any  of  them,  must  go  among  the  persons 
assembled,  or  as  near  to  them  as  possible,  and  com- 
mand them,  in  the  name  of  the  people  of  the  State, 
immediately  to  disperse.  If  the  persons  assembled  do 
not  immediately  disperse,  such  magistrate  and  officers 
must  arrest  them,  and  to  that  end  may  command  the 
aid  of  all  persons  present  or  within  the  county.  When 
there  is  an  unlawful  or  riotous  assembly  with  the  intent 
to  commit  a  felony,  or  to  offer  violence  to  person  or 
property,  or  to  resist  by  force  the  laws  of  the  State,  or 
of  the  United  States,  and  the  fact  is  made  known  to 
the  governor,  or  to  any  justice  of  the  Supreme  Court, 
or  to  the  superior  judge  ok  sheriff  of  the  county,  or  to 
th(;  mayor  of  a  city,  or  to  the  president  of  the  Board 
cjf  .Sujx.Tvisors  of  the  cities  and  counties  of  Sacramento 
and  San  l^'rancisccj,  either  of  those  officers  may  issue 
an  order  directed  to  the  commanding  officer  of  a  divi- 


GENERAL    RE(]ULATIONS.  §  38 

sion  or  brigade  of  the  organized  national  guard  or  en- 
rolled militia  of  the  State,  to  order  his  command,  or 
such  part  thereof  as  may  be  necessary,  into  active  serv^- 
ice,  and  to  appear  at  a  time  and  place  therein  specified 
to  aid  the  civil  authorities  in  suppressing  violence  and 
enforcing  the  laws;"  and  such  armed  force  must  obey 
the  orders  of  such  civil  officer  in  relation  thereto.  "If 
in  the  opinion  of  such  civil  officer  it  shall  become  neces- 
sary that  the  troops  shall  fire  or  charge  upon  any  mob 
or  body  of  persons  so  assembled,  such  civil  officer  shall 
give  a  written  order  to  that  effect  to  the  superior  officer 
present  in  command  of  such  troopS,  who  will  at  once 
proceed  to  carry  out  the  order,  and  shall  direct  the  firing 
and  attack  to  cease  only  when  such  unlawful  assembly 
shall  have  been  dispersed,  or  when  ordered  to  do  so  by 
the  proper  civil  authority.  When  the  governor  is  sat- 
isfied that  the  execution  of  civil  or  criminal  process  has 
been  forcibly  resisted  in  any  county  by  bodies  of  men, 
or  that  combinations  to  resist  the  execution  of  process 
by  force  exist  in  any  county,  and  that  the  power  of  the 
county  has  been  exerted  and  has  not  been  sufficient  to 
enable  the  officers  having  the  process  to  execute  it,  he 
may,  on  the  application  of  the  officer,  or  of  the  district 
attorney  or  county  judge  of  the  county,  by  proclamation 
published  in  such  papers  as  he  may  direct,  declare  the 
county  to  be  in  a  state  of  insurrection,  and  may  order 
into  the  service  of  the  State  such  number  and  descrip- 
tion of  the  organized  national  o-uard  or  volunteer  uni- 
formed  companies,  or  other  militia  of  the  State,  as  he 
deems  necessary,  to  serve  for  such  term  and  under  the 
command  of  such  officer  as  he  may  direct. "  Any  person 
who,  after  the  publication  of  such  proclamation,  resists 
or  aids  in  resisting  the  execution  of  process  in  any 
county  declared  to  be  in  a  state  of  insurrection,  or  who 


§§  39-  4^  GENERAL    REGULATIONS. 

aids  or  attempts  the  rescue  or  escape  of  another  from 
lawful  custody  or  confinement,  or  who  resists  or  aids  in 
resisting  any  force  ordered  out  by  the  governor  to  quell 
or  suppress  an  insurrection,  is  punishable  by  imprison- 
ment in  the  State  prison  not  less  than  two  years.  {Cal- 
ifornia.    Sees.   'J26-JJ2,  411  Penal  Code.)     Compare: 

Arizona.     Sees,  i IJ4-81  Penal  Coele. 

Colo7'ado.     Sees.  8^6,  1310  Mills  Ann.  Stats,  iSgi. 

Idaho.     Sees.  740^-8  Revised  Statutes,  188'/. 

Nevada.     Sees.  IJ18-JO  General  Statutes,  188 j. 

07'egon.     Sees.  iS^g-^g  Hill's  Codes,  i8g2. 

Montana.  Sees.  14-18,  p.  406;  Sees.  142-5,  p.  538, 
Compiled  Statutes,  188^. 

Utah.     Sees.  4812-16  Compiled  Lazus,  1888. 

Washington.     Sees.  g2-g4  Penal  Code. 

I  39.      Remaining   at    Place    of   Riot    after 

Warning. —  "Every  person  remaining  present  at  the 
place  of  any  riot,  rout,  or  unlawful  assembly,  after  the 
same  has  been  lawfully  warned  to  disperse,  except 
public  officers  and  persons  assisting  them  in  attempt- 
ing to  disperse  the  same,  is  guilty  of  a  misdemeanor." 
[California.     See.  4og  Penal  Code.) 

Arizona.     See.  65 j  Revised  Statutes,  i88j. 

Colorado.     See.  1306  Mills  Ann.  Stats.,  i8gi. 

Idaho.     See.  6g§5  Revised  Statutes,  i88y. 

Utah.     See.  4Sg4  Comp.  Lazus,  1888. 

Washington.     See.  g4  Penal  Code. 

$  40.  Neglect  to  Disperse  Rioters. — "  If  a  mag- 
istrate or  otiiccr,  having  notice  of  an  unlawful  or 
riotous  as.sembl)-,  mentioned  in  this  chapter,  neglects 
to  i^roceed  to  the  ])lace  of  assembly,  or  as  near  thereto 
as  he  can    with   safety,   and   to  exercise  the  authority 


(lE.XKRAl.    RKe;ULATI().\S.  §§41,42' 

with  which  he  is  invested  for  suppressino-  the  same  and 
arresting  the  offenders,  he  is  guilty  of  a  misdemeanor." 
{Califomiia.     Sec.  410  Penal  Code.) 

Arizona.     Sec.  6^4  Revised  Statutes,  i88j. 

Idaho.     Sec.  6g^6  Revised  Statutes,  iSSy. 

Montana.     Sec.   i^g,  p.  544,   Camp.  Statutes,   iSSy. 

Utah.     Sec.  4S95  Coinp.  Laws,  1888. 

§  41.    Prosecution  of  Gamblers.— "  Every  sheriff, 

district  attorney,  constable,  or  police  officer  must  inform 
against  and  diligently  prosecute  persons  whom  they 
have  reasonable  cause  to  believe  offenders  against  the 
provisions  of  the  Penal  Code  relative  to  gambling;  and 
every  such  officer  refusing  or  neglecting  so  to  do,  is 
guilty  of  a  misdemeanor."  {California.  Sec.  jj^  Penal 
Code.)     Compare: 

Colorado.     Sec.  1343  Mills   Ann.  Statutes,  i8gi.^ 

Washington.     Sec.  ^4^-  6  Penal  Code. 

I  42.     Officer  Must  Not  Act  as  Attorney.— 

Sheriffs  and  their  deputies  are  prohibited  from  practic- 
ing law,  or  acting  as  attorneys  or  counselors  at  law,  in 
the  counties  where  they  reside  and  hold  office,  or  from 
having  as  a  partner  a  lawyer,  or  anyone  who  acts  as 
such.  {California.  Sec.  68  Co.  Govt.  Bill,  Statutes 
i8gj,  p.  j68;  Sec.  41 21  Political  Code.)  Nor  is  it  law- 
ful for  the  sheriff  nor  any  of  his  deputies  of  the  City  and 
County  of  San  Francisco  to  appear  or  advocate,  or  in  any 
manner  act  as  attorney,  counsel,  or  agent  for  any  partv 
or  person  in  any  cause,  or  in  relation  to  any  demand, 
account,  or  claim  pending,  or  to  be  sued  or  prosecuted 
before  the  justices  of  the  peace  of  that  city  and  county, 
or  any  of  them,  or  which  may  be  within  their  jurisdic- 
tion; and  a  violation  of  this  provision  shall  be  deemed 
a  misdemeanor  in  office. 


§§  43-45  GENERAL    REGULATIONS. 

Arizona.     Sees,  ii^,  4'/ 8  Revised  Statutes,  iSSj. 
Colorado.     Sees.  <S6j,  204  Mills  Ann.  Stats.,  iSgi. 
Idaho.     See.  182'/  Revised  Statutes,  188'j. 
Montana.     See.  862,  p.  8^4,  Co7np.  Statutes,  i88y. 
Oregon.     See.  1024  Hilf  s  Codes,  i8g2. 
Washington.      See.   j2y  I  Hill's   Codes,   i8gi;   See. 
82  II  HiU. 

%  43.     May  Administer  Oaths. — The  sheriff  and 

his  deputies  may  administer  and  certify  oaths.  {Cali- 
fornia, See.  6^  Co.  Govt.  Bill,  See.  41 18  Pol.  Code.) 
As  this  statutory  power  is  conferred  without  restric- 
tions, the  exercise  of  the  power  would  seem  to  be  not 
limited  to  matters  otherwise  comino-  within  the  line  of 
his  official  business.      {Pffeiffervs.  Riehn,  ij  Cal.  648.) 

Arizona.     See.  4J^  Revised  StattUes,  188'j. 

Idaho.     See.  1824  R^'^ised  Statutes,  i88j. 

\  44.    Payment  of  Moneys  to   Treasurer. — 

J'he  sheriff  must  pay  into  the  county  treasury,  on  the 
first  Monday  in  each  month,  the  fees  allowed  by  law  in 
all  cases,  except  such  fees  as  are  a  charge  against  the 
^county,  and  must  accompany  the  same  by  a  statement 
of  the  aircrrerate  amount  thereof,  as  shown  bv  the  fee 
book,  duly  verified  by  the  officer  by  his  affidavit  in  the 
form  jjrescribed  by  law.  {Califo7'nia.  Sees.  2iy,  2ig 
Co.  Covt.  /nil,  Statutes  ^8gj,  pp.  308  g.) 

Arizona.      Sec.  428  Revised  Statutes,  T88y. 

Colorado.  See.  /^,  Art.  XIV,  Constitution,  See. 
g2i  Mills   Ann.  Statutes. 

Montana.     Sec.  g6y,  p.  go8,  Comp.  Statutes,  i88y. 

Idaho.     Sec  2120  Revised  Statutes,  i88y. 

Washington.     Sec.  1^2  I  I  fill  s  Codes,  i8gi. 


CENKRAI,    RK(;U[,A'riONS.  §^  46,  47 

^  45.  Sheriffs  to  Give  Dead  Bodies  to  Phy- 
sicians. "The  sheriff  or  keeper  of  a  county  jail  must 
surrender  the  dead  bodies  of  such  persons  as  are 
required  to  be  buried  at  the  pubhc  expense  to  any  phy- 
sician or  surt^eon,  to  be  by  him  used  for  the  advance- 
ment of  anatomical  science,  preference  being  always 
given  to  medical  schools  by  law  established  in  this 
State,  for  their  use  to  the  instruction  of  medical  stu- 
dents. But  if  such  person  during  his  last  sickness 
requested  to  be  buried,  or  if,  within  twenty-four  hours 
atter  his  death,  some  person  claiming  to  be  of  kindred 
or  a  friend  of  the  deceased  requires  the  body  to  be 
buried,  or  if  such  deceased  person  was  a  stranger  or 
traveler  who  suddenly  died  before  making  himself 
known,  such  dead  body  must  be  buried  without  dissec- 
tion."    {California.     Sec.  jog^  Political  Code.) 

I  46.    Food  and  Lodging  for  Juries. — While  a 

jury  are  kept  together,  either  during  the  progress  of 
the  trial  or  after  their  retirement,  for  deliberation,  they 
must  be  provided  by  the  sheriff,  at  the  expense  of  the 
county,  with  suitable  and  sufficient  food  and  lodging. 
{California.      Sec.  1 1 j6  Penal  Code.) 

\  4;.  Embezzlement  and  Falsification  of  Ac- 
counts.—  "t^very  officer  of  this  State,  or  of  any  county, 
city,  town,  or  district  of  this  State,  and  every  other  per- 
son charged  with  the  receipt,  safe  keeping,  transfer,  or 
disbursement  of  public  moneys,  who  either  : 

"i.  Without  authority  of  law  appropriates  the 
same  or  any  portion  thereof  to  his  own  use,  or  to  the 
use  of  another;  or, 

"2.    Loans  the  same  or  any  portion  thereof;  or, 
"3.   Fails  to  keep  the  same  in  his  possession  until 
disbursed  or  paid  out  by  authority  of  law;  or. 


§47  GENERAL,    REGULATIONS. 

"4.  Unlawfully  deposits  the  same  or  any  portion 
thereof  in  any  bank,  or  with  any  banker  or  other  per- 
son; or, 

"5.  Changes  or  converts  any  portion  thereof  from 
coin  into  currency  or  from  currency  into  coin  or  other 
currency,  without  authority  of  law;  or, 

"6.  Knowingly  keeps  any  false  account,  or  makes 
any  false  entry  or  erasure  in  any  account  of  or  relating" 
to  the  same;  or, 

"7.  Fraudulently  alters,  falsifies,  conceals,  destroys, 
or  obliterates  any  such  account;  or, 

"8.  Willfully  refuses  or  omits  to  pay  over,  on 
demand,  any  public  moneys  in  his  hands,  upon  the 
presentation  of  a  draft,  order,  or  warrant  drawn  upon 
such  moneys  by  competent  authority;  or, 

''9.  Willfully  omits  to  transfer  the  same,  when  such 
transfer  is  required  by  law;  or, 

"10.  Willfully  omits  or  refuses  to  pay  over  to  any 
officer  or  person  authorized  by  law  to  receive  the  same, 
any  money  received  by  him  under  any  duty  imposed 
by  law  so  to  pay  o\^er  the  same  : 

—  Is  punishable  by  imprisonment  in  the  State  prison 
for  not  less  than  one  nor  more  than  ten  years,  and  is 
disqualified  from  holding  any  office  in  this  State." 
{California.     Sec.  424  Penal  Code.)     Compare: 

Arizona.     Sec.  ^75  Penal  Code. 

Colorado.  Sec.  ij  Art.  X  Const  i hi /ion;  Sees.  Jjog^ 
/j'//5  5/  Mills   .Inn.  S/a/n/es,  i8gi. 

Idaho .      .Sees.  (^S34>  ^^975  /"^(-"^'ised  S/a/n/es,  iSSy. 

Nevada.  .Sees.  /6g6,  r68g  gi ,  241/,  4^47,  47og-/o 
(ieneral  S/a/n/es,  /SS^. 

A/on/ana.  Sees.  Sy  8g,  p.  j^ig:  Sec.  114,  p.  5^0.. 
Compiled  S/a/u/es,  rSSy. 

(//ah.     Sees.  46()j  4,  4('>S(i  Compiled  La^vs,  /S88. 
Washing/ on.      Sec.  184  Penal  Code. 


CKiXKRAI,    Rl'-CUI^ATIONS.  ^^  48,  49 

^  4S     Larceny,  Mutilation  or  Destruction  of 

Records. — "Every  officer  having  the  custody  of  any 
record,  map,  or  book,  or  of  any  paper  or  proceeding  of 
any  court,  filed  or  deposited  in  any  public  office,  or 
placed  in  his  hands  for  any  purpose,  who  is  guilty  of 
stealing,  willfully  destroying,  mutilating,  defacing,  alter- 
ing or  falsifying,  removing  or  secreting  the  whole  or 
any  part  of  such  record,  map,  book,  paper,  or  proceed- 
ing, or  who  permits  any  other  person  so  to  do,  is  pun- 
ishable by  imprisonment  in  the  State  prison  not  less 
than  one  nor  more  than  fourteen  years."  {California. 
Sec.  1 1 J  Penal  Code.)     Compare: 

Arizona.     Sec.  ij8  Penal  Code. 

Colorado.     Sec.  I2j6  Mills  Ann.  Statutes,  i8gi. 

Montana.     Sec.  1 1^,  p.  ^jo,  Compiled  Statutes,  i88j. 

Nevada.     Sec.  i6g6  General  Statutes,  i88^. 

Idaho.      Sec.  646^  Revised  Statutes,  188'/. 

i^taJi.     Sees.  4416  J  Compiled  Lazvs,  1888. 

i  49.     Breach  or  Omission  of  Duty. — For  every 

failure  or  refusal  to  perform  official  duty  when  the  fees 
are  tendered,  he  is  liable  on  his  official  bond.  [Cali- 
fornia. Sec.  22 J  Co.  Govt.  Bill,  Statutes  i8gj,  p.  ^10. ) 
"  Every  willful  omission  to  perform  any  duty  enjoined 
by  law  upon  any  public  officer,  or  person  holding  any 
public  trust  or  employment,  where  no  special  provision 
shall  have  been  made  for  the  punishment  of  such  delin- 
quency, is  punishable  as  a  misdemeanor."  {Califoi^nia. 
Sec.  I  yd  Penal  Code.)  In  Ex  Parte  Harrold,  47  Cal. 
129,  it  is  declared  that  this  provision  does  not  apply  to 
conditions  or  qualifications  on  which  the  incumbent's 
right  to  hold  an  office  depends,  but  to  duties  pertain- 
ing to  the  office,  while  in  the  discharge  of  official  duties. 
Arizona.     Sec.  2^6  Penal  Code. 


§§  ^O,  51  (lENKRAl.    REGULAIK^NS. 

Colorado.     Sec.  ijoj  Mills  Ann.  Statutes,  iSgi . 

Idaho.     See.  6^6^  Revised  Statutes,  i88y. 

Montana.  See.  266,  p.  ^yg;  See.  g2j,  p.  S8g,  Com- 
piled Statutes,  iSSj. 

Oregon.     See.  18^2  Hilts  Codes,  i8g2. 

Utah.     See.  4447  Compiled  Laws,  1888. 

Washington.  See.  ijo  I  Hilt s  Codes,  i8gi;  Sec. 
1 186  //  Hill:  Sec.  183  Penal  Code. 

\  50.     Asking  or  Receiving  Bribes.—  "  Every 

executive  officer,  or  person  elected  or  appointed  to  an 
executive  office,  who  asks,  receives,  or  agrees  to  receive, 
any  bribe,  upon  any  agreement  or  understanding  that 
his  vote,  opinion,  or  action  upon  any  matter  then  pend- 
ing, or  which  may  be  brought  before  him  in  his  official 
capacity,  shall  be  influenced  thereby,  is  punishable  by 
imprisonment  in  the  State  prison  not  less  than  one  nor 
more  than  fourteen  years;  and,  in  addition  thereto,  for- 
feits his  office,  and  is  forever  disqualified  from  holding 
any  office  in  this  State,"  [California.  Sec.  68  Penal 
Code. ) 

Arizona.     Sec.  loi  Penal  Code. 

Coloj'ado.  Sees.  12 7 4- 5,  rj>02  Mills  Ann.  Statutes, 
i8gi. 

Idaho.     Sees.  6j8o   r  Revised  Statutes,  1887. 

Nevada.      Sees.  1686  7  Cencral  Statutes,  188^. 

Oregon.      Sec.  i82g  Hilts  Codes,  i8g2. 

Utah.     Sees.  4jg6,  4jg8  Compiled  Laius,  /888. 

IVashington.     Sec.  ijj  Penal  Code. 

§  51.  False  Certificates.  "Every  public  officer 
authorized  b\  law  to  mak(;  or  give  any  certificate  or 
other  writing,  who  makers  and  delivers  as  true  any  such 
certificate  or   writing.  coiUaininij    statements   which   \\^ 


(]Em:kai,  kkcui.ations.  vJ§  52,  ^2> 

knows  to  \)v.  false,  is  t^aiilty  of  a  misdemeanor."      {Cali- 
fornia.    Sec.  1 6^  Penal  Code.) 

Arizona.     Sec.  2^1  Penal  Code. 

Idaho.     Sec.  6^jo  Revised  Slalufes,  iSSy. 

§  52.  Assaults  by  Officers. — "  Every  public  officer 
who,  under  color  of  authority,  without  lawful  necessity, 
assaults  or  beats  any  person,  is  punishable  by  fine  not 
exceeding-  $5,000,  and  imprisonment  in  the  county  jail 
not  exceeding  five  years."  {California.  See.  i^g  Penal 
Code.) 

Arizona.     See.  2j^  Penal  Code.  , 

Idaho.     Sec  6^16  Revised  Statutes. 

%  53.  Examination  by  Supervisors. —  When- 
ever the  Board  of  Supervisors  of  any  county  shall  deem 
it  necessary  or  important  to  examine  .  .  .  any 
officer  of  the  county  in  relation  to  the  discharge  of  his 
official  duties,  as  to  the  receipt  or  disposition  by  him  of 
any  moneys,  or  concerning  the  possession  or  disburse- 
ment by  him  of  any  property  belonging  to  the  county, 
or  to  use,  inspect,  or  examine  any  books,  account, 
voucher,  or  document  in  the  possession  of  such  officer 
or  other  person,  or  under  his  control,  relating  to  the 
affairs  or  interests  of  such  county,  the  chairman  of  such 
board  shall  issue  a  subpoena,  in  proper  form,  commanding 
such  person  or  officer  to  appear  before  such  board,  at 
a  time  and  place  therein  specified,  to  be  examined  as 
a  witness,  and  such  subpoena  may  contain  a  clause 
requiring  such  person  or  officer  to  produce  on  such 
examination  all  books,  papers,  and  documents  in  his 
possession  or  under  his  control,  relating  to  the  afiairs 
or  interests  of  the  county."  [California.  See.  28  Co. 
Govt.  Bill,  StatiUes  iS(pj,  p.  j6o.) 

Utah.     Sec.  iSg,  p.  J04.  Compiled  Laivs,  1888. 


§§  54~56  c;eneral  ri-xjulatiows. 

^  54.  Sheriff's  Badges. — The  boards  of  super- 
visors of  the  several  counties  of  this  State  must  furnish 
to  the  sheriff,  under  sheriffs,  and  deputy  sheriffs  of  their 
respective  counties,  a  suitable  badge  of  office,  upon 
which  shall  be  inscribed  the  words  "sheriff"  and  "dep- 
uty sheriff."     [California.     Statutes  i8y^  6,  p.  8oj.) 

%  54a.  Appointment  of  Under  Sheriff.  In  Cali- 
fornia "the  Board  of  Supervisors  may  allow  the  sheriff 
an  under  sheriff,  at  a  salary  to  be  fixed  by  the  board, 
not  to  exceed  $200  per  month,"  in  counties  of  the 
second  class.  {Sec.  164.,  Sub.  ly  Co.  Govt.  Bill,  Stat- 
utes iSgj,p.  jgj.) 

I  55.    Direction  to  Sheriff  Must  Be  in  Writing. 

— "  No  direction  or  authority  by  a  party  or  his  attorney 
to  a  sheriff,  in  respect  to  the  execution  of  process  or 
return  thereof,  or  to  any  act  or  omission  relating  thereto, 
is  iivailable  to  discharge  or  excuse  the  sheriff  from  a 
liability  for  neglect  or  misconduct,  unless  it  is  contained 
in  a  writing,  signed  by  the  attorney  of  the  party,  or  by 
the  party,  if  he  has  no  attorne\'."  {California.  Sec. 
102  Co.  Govt.  Bill  Statutes  rSgj,  p.  jyj :  Sec.  4185 
Political  Code. ) 

Arizona.     Sec.  ^06  /^^evised  Statutes,  j88/. 

Idaho.     Sec.  1S80  Revised  Statutes,  188^. 

Oregon.     Sec.  1020  /dill's  Codes,  i8g2. 

\  56.    When   Sheriff  Justified   in   Executing 

Process.  "A  sheriff,  or  other  mim'sterial  officer,  is 
justilicd  in  ihc  execution  ot  and  must  execute  all  process 
and  orders  regular  on  their  face  and  issued  by  compe- 
tent authoritv,  whatever  may  be  the  defect  in  the  pro- 
ceedings upon  which  ihev  wc;re  issuetl."  {California. 
Sec.    104  Co.    Govt.    Hill   Statutes    /8gj,  />.  j/j;    Sec. 


GENERAL    RK(  a'EATIONS.  §§   57-59 

418-/  Political  Code.)  Sec  also  Sees.  204,  332  j,  3J7 
post. 

A7'iso7ia.     Sec.  308  Revised  Statutes,  i88j. 

Idaho.     Sec.  1882  Revised  Statutes,  1887. 

Oregon.     Sec.  1022  Hilts  Codes,  i8g2. 

%  s7-    Officer  to  Exhibit  Process.— '  The  officer 

executing  process  must  then,  and  at  all  times  subse- 
quent, so  long  as  he  retains  it,  upon  request  show  the 
same,  with  all  papers  attached,  to  any  person  interested 
therein."  {California.  Sec.  103  Co.  Govt.  Bill,  Stat- 
utes i8g3,  p.  3 J 3;  Sec.  4188  Political  Code.) 

Arizona.     Sec.  3og  Revised  Statutes,  1887. 

Idaho.     Sec.  1883  Revised  Statutes,  i88y. 

Oregon.     Sec.  1023  Hills  Codes,  i8g2. 

%  58.    Service  on  Sheriff,  How  Made.^"  Service 

of  a  paper,  other  than  process,  upon  the  sheriff  may  be 
made  by  delivering  it  to  him  or  to  one  of  his  deputies, 
or  to  a  person  in  charge  of  the  office  during  office 
hours,  or  if  no  such  person  is  there,  by  leaving  it  in  a 
conspicuous  place  in  the  office."  {California.  Sec. 
loy  Co.  Govt.  Bill,  Statutes  i8g3,  p.  3J3;  Sec.  4igo 
Political  Code.) 

Arizona.     Sec.  311  Revised  Statutes,  i88y. 

Colo7'ado.     Sec.  862  Milts  Ann.  Statutes,  i8gi. 

Idaho.     Sec.  1883  Revised  Statutes,  i88j. 

Montana.     Sec.  861,  p.  8J4,  Compiled  Statutes,  j88j. 

Nevada.      Sec.  2136  Gfnei-al  Statutes,  1883. 

Oregon.     Sec.  gg2  Hills  Codes,  i8g2. 

§  59.    Return  of  Process  from  Another  County. 

— "When  process  or  notices  are  returnable  to  another 
county,  he  may  inclose  such  process  or  notice  in  an 
envelope,  addressed  to  the  officer  from  whom  the  same 


§§  6o-62  (iENERAL    RiaU'LA  II()\  S. 

emanated,  and  deposit  it  in  the  i)(j.st  office,  prepaying- 
postaL,fe."  {Califoniia.  Sec.  g^  Co.  CrovL  Bill,  S/a/- 
ufcs  iSgj,  p.  jy2;  Sec.  4177  Political  Code. ) 

Arizona.      Sec.  4.(^8  Rei'ised  Slahiles,  1887. 

Idaho.      Sec.  1872  Revised  Statutes,  1S87. 

%  60.    Return    Prima  Facie    Evidence. — "The 

return  of  the  sheriff  upon  process  or  notices  is  prima 
facie  evidence  of  the  facts  in  such  return  stated."  {Cal- 
if oi'-nia.  Sec.  p5  Co.  Govt.  Bill,  Statutes  i8gj,  p.  J72; 
Sec.  4178  Political  Code. ) 

Arizona.     Sec.  4gg  Revised  Statutes,  1887. 

Idaho.     Sec.  187J  Revised  Statutes,  1887. 

^61.    Penalty  for  Non-return  of  Process,  etc. 

—  "If  the  sherift"  does  not  return  a  notice  or  process  in 
his  possession  with  the  necessary  indorsement  thereon 
without  delay,  he  is  liable  to  the  partv  a^^-g-rieved  for 
the  sum  of  two  hundred  dollars  and  for  all  damages 
sustained  by  him."  {California.  Sec.  g6  Co.  Govt. 
Bill,  Statutes  i8gj,  p.  J72;  Sec.  41 7g  Political  Code. ) 

Arizona.     Sec.  ^00  Revised  Statutes,  1887. 

Colorado.     Sec.  864  Mills  Ann.  Statutes,  i8gi. 

Idaho.      Sec.  1 874  Revised  Statutes,  1887. 

Montana.      Sec.  86 j,  p.  874,  Compiled  .Statutes,  1887. 

Nevada.     Sec.  2/26  General  Statutes,  /88j. 

^  62.     Liable   for  Refusing  to  Levy.     "If  the 

sheriff  to  whoni  a  writ  ot  execution  is  (leli\-cre(l  neg- 
lects or  refuses,  alter  being  n^cjuin'd  by  the  creditor  or 
his  attorne\',  to  lev\'  upon  or  sell  am  propert\-  ot  the 
party  charged  In  the  writ  which  is  lial)l('  to  be  levied 
upon  and  sold,  he  Is  liable  to  the  creditor  tor  the  \'alue 
of  such  propert)-."  {California.  .Sec.  <J7  Co.  Govt. 
Bill,  .Statutes  /8gj,p.  J72:  .Sec.  4/80  Political  Code.) 


(iKXERAL    RK(ail,ArU).\S.  §§  63,   64 

A7'i.zona.     Sees.  501  Revised  Statutes,  iSSj. 
Idaho.     See.  iSy^  Revised  Statutes,  iSSy. 
Nevada.     See.  212"/  GeneT-al  Statutes,  188^. 

%  63.    Neglect  or  Refusal  of   Sheriff  to  Pay 

Over  Moneys. — "If  he  neglects  or  refuses  to  pay  over 
on  demand,  to  the  person  entitled  thereto,  any  money 
which  may  come  into  his  hands  by  virtue  of  his  office 
(after  deducting  his  legal  fees),  the  amount  thereof, 
with  twenty-five  per  cent  damages  and  interest  at  the 
rate  of  ten  per  cent  per  month  from  the  time  of  demand, 
may  be  recovered  by  such  person."  "  [California.  See. 
g8  Co.  Govt.  Bill,  Stattdes  i8gj,  p.  j'/2;  See.  4181 
Political  Code.) 

"If  any  clerk,  justice  of  the  peace,  sheriff,  or  consta- 
ble, who  receives  any  fine  or  forfeiture,  refuses  or  neg- 
lects to  pay  over  the  same  according  to  law  and  within 
thirty  days  after  the  receipt  thereof,  he  is  guilty  ot  a 
misdemeanor."       [California.     See.    42 j   Penal  Code.) 

"Every  officer  charged  with  the  receipt,  safe  keep- 
ing, or  disbursement  of  public  moneys,  who  neglects  or 
fails  to  keep  and  pay  over  the  same  in  the  manner  pre- 
scribed by  law,  is  guilty  of  felony."  {California.  See. 
42^  Penal  Code.)     See  also  See.  ^7  ante. 

Arizona.     Sees.  ^02,  6/6-8  Penal  Code. 

Colorado.     Sees.   124^8  Mills  Ann.  Statutes,  i8gi. 

Idaho.     Sees.  /8/6,  6g/6,  6g/8  Revised  Statutes,  i88j. 

Nevada.     See.  2128  General  Statutes,  t88^. 

Utah.     Sees.  4604,  4606  Compiled  Laivs,  1888. 

%  64.    Receipt  of  Writ  on  Holiday. — The  sheriff 

cannot  officially  receive  a  writ  which  he  is  not  author- 
ized to  execute  on  such  day.  If  it  be  handed  to  him 
on  a  holidav,  he  receives  it  onlv  as  the  agent  of  the 


§§  65-67  GENERAL    REGULATIONS. 

plaintiff  until  it  comes  to  his  hands  officially  upon  the 
opening  of  the  next  business  day.  ( Whitney  vs.  But- 
terjield,  ij  Cal.  jj6. ) 

%  65.  Service  of  Writs  by  Telegraph.— In  Cal- 
ifornia and  some  other  States,  provision  is  made  by 
statute  for  the  transmission  of  writs  by  telegraph  for 
service,  in  which  case  the  service  and  return  are  made 
in  the  same  manner  as  if  the  original  were  to  be  served. 

Ai'izona.     Sees.  131 3  Penal  Code. 

California.     See.  loi'j  C  C  P.;  See.  830  Penal  Code. 

Nevada.     See.  g3'/  General  Statutes,  1883. 

\  66.     Coroner    to    Execute    Process    When 

Sheriff  a  Party. — "When  the  sheriff  is  a  party  to  an 
action  or  proceeding,  the  process  and  orders  therein, 
which  it  would  otherwise  be  the  duty  of  the  sheriff  to 
execute,  must  be  executed  by  the  coroner  of  the  county ; 
provided,  when  any  action  is  begun  against  the  sheriff, 
all  process  and  order  may  be  served  by  any  person,  a 
citizen  of  the  United  States,  over  the  ao^e  of  eicrhteen 
years,  in  the  manner  provided  in  the  Code  of  Civil  Pro- 
cedure." [California.  See.  108  Co.  Govt.  Bill,  Stat- 
utes i8g3,  p.  374. 

Arizona.     See.  312  Revised  Statutes,  /88y. 

Colorado.     Sees.  868-g,  83g  Mills  Ann.  Statutes,  i8gi. 

Idaho.     Sees.  1S86,  2083  Revised  Statutes.  /88y. 

Montana.     Sees.  86j-  8,  p.  873,  Couip.  Statutes,  1887. 

Oregon.     Sees.  1027  g  HilPs  Codes,  i8g2. 

Washington.     See.  8/  II  Hill's  Codes,  i8gi. 

\  67.    Elisors  to  Act  in   Cases  Designated.- 

"  l-*rocess  and  orders  in  an  action  or  proceeding  may  be 
executed  1)\  a  person  residing  in  tiie  county,  designated 


(JKNERAI,    1<K(;IILATH)XS.  §  68 

by  the  court,  the  jucloe  thereof,  or  a  county  judge,  and 
denominated  an  ehsor,  in  the  followingf  cases: — 

"  I.   When  the  sheriff  and  coroner  are  both  parties; 

"2.  When  either  of  these  officers  is  a  party  and  the 
process  is  against  the  other;  and, 

*'  3.  When  either  of  these  officers  is  a  party  and  there 
is  a  vacancy  in  the  office  of  the  other,  or  when  it  appears 
by  affidavit  to  the  satisfaction  of  the  court  in  which  the 
proceeding  is  pending,  or  to  the  judge  thereof,  that 
both  of  these  officers  are  disqualified,  or  by  reason  of 
any  bias,  prejucHce,  or  other  cause,  would  not  act 
promptly  or  impartially. 

"When  process  is  delivered  to  an  elisor,  he  must  exe- 
cute and  return  it  in  the  same  manner  as  the  sheriff  is 
required  to  execute  similar  process."  {California.  Sec. 
log  Co.  Govt.  Bill,  Stat.  i8gj,  p.  j/^.'  Sec.  41^2  Pol. 
Code. ) 

Idaho.     Sec.  i8gi  Revised  Statutes,  i88j. 

Nevada.     Sees.  2 160-6 j  Gene^'al  Statutes,  188^. 

Oregon.     Sees.  io^8-g  Hill s  Codes,  i8g2. 

§  68.    Fees  of  Coroner  or  Elisor. — "Whenever 

process  is  executed,  or  any  act  performed  by  a  coroner 
or  elisor  in  the  cases  provided  by  law  in  that  behalf, 
such  coroner  or  elisor  shall  be  entitled  to  receive  the 
same  fees  as  the  sheriff  would  be  entitled  to  receive  for 
the  same  service,  to  be  paid  by  the  plaintiff  in  case  of 
the  summoning  of  jurors  to  complete  the  panel,  and  by 
the  person  or  party  requiring  the  service  in  all  other 
cases  in  private  actions.  If  rendered  at  the  instance  of 
the  people,  it  shall  be  audited  and  paid  as  a  county 
charge."  [California.  Sec.  log  Co.  Govt.  Bill,  Stat- 
utes i8gj,  p.  J74.) 

Nevada.     Sec.  2i6j  General  Statutes,  i88§. 


^§  69,  70  tiENERAL    REGULATIONS. 

§  69.  Vacancies. — Strictly  speaking,  there  can  be 
no  vacancy  in  the  office  of  sheriff,  caused  by  the  death, 
removal  or  resignation  of  the  incumbent,  for  upon  the 
happening  of  such  an  event,  the  coroner,  by  operation 
of  law,  becomes  sheriff,  in  the  absence  of  statutory  pro- 
vision to  the  contrary.  (People  vs.  Phoenix,  6  Cal. 
92.)  But  the  coroner  only  holds  the  office  of  sheriff  ^^ 
officio  until  the  appointment  of  a  new  sheriff  by  the 
Board  of  Supervisors.  {California.  See  Sec.  yy  post.) 
Compare: 

Colorado.     Sec.  8^1  Mills  Ann.  Statutes,  i8gi. 

Idaho.     Sec.  18 18  Revised  Statutes,  188"/. 

I  70.      When    Vacancy    Exists — Generally.— 

"The  office  of  sheriff  becomes  vacant  on  the  happening 
of  either  of  the  following  events  before  the  expiration 
of  the  term: — 

"I.   The  death  of  the  incumbent. 

"2.  His  insanity,  found  upon  a  commission  of 
lunacy  issued  to  determine  the  fact. 

"3.    His  resignation. 

"4.    His  removal  from  office. 

"5.    His  ceasing  to  be  an  inhabitant  of  the 
county. 

"6.  His  absence  from  the  State  .  .  .  beyond 
the  jjeriod  allowed  by  law. 

"7.  His  ceasing  to  discharge  the  duties  of  his  office 
lor  the  period  of  three  consecutive  months,  except 
when  j)revented  by  sickness. 

"<S.  I  lis  conviction  of  a  felony,  or  of  any  offense 
involving  a  violation  of  his  offical  duties. 

"9.  His  refusal  or  neglect  to  file  his  official  oath  or 
IjoikI  within  the  time  |)n;scribed. 

"  \().   Thf  (](•(  ision  of  a  competent  tribunal  declaring 


GENERAL    RE(  lULAlIONS.  $§   7  I,    72 

\oicl  his  election  or  appointment."  [California.  Sec. 
g()6  Pol.  Code.  See  Sec.  6j  Co.  Govt.  Bill. )  See  also 
Sec.  J ^  post  and  Sec.  50  ante. 

Arizona.     Sec.  Jii i  Revised  Statutes,  i88j. 

Colorado.     Sec.  g24  Mills  Ann.  Statutes,  i8gi. 

Idaho.     Sees,  ^ji,  1881  Revised  Statutes,  188^. 

Montana.     Sec.  1046,  p.  gj^,  Compiled  Statutes,  188^. 

JSFevada.     Sees.   i6jo,  171J,  3g^4,  Gen.  Stats.,  /88^. 

Oi^egon.     Sees.  2^^1-2  Hills  Codes,  i8g2. 

Washington.     Sec.  J42  I  HilVs  Codes,  i8gi. 

571.  Resignation  "to  Whom  Sent. — The  resig- 
nation of  the  sheriff  must  be  in  writing  and  filed  with  the 
clerk  of  the  Board  of  Supervisors.  {California.  Sec. 
gg^  Political  Code. )     Compare  : 

AHzona.     Sec.  Jiio  Revised  Statutes,  i88y. 

Colorado.     Sec.  g2j  Mills  Ann.  Statutes,  iSgi . 

Idaho.     Sec.  430  Revised  Statutes,  i88y. 

Montana.     Sec.  104^,  p.  gj4,  Comp.  Stats.,  188^. 

■  Nevada.     Sec.  i66g  General  Statutes,  188^. 

Oregon.     Sec.  2^^o  Hills  Codes,  i8g2. 

Washington.     Sec.  J41  I  Hill's  Codes,  i8gi. 

§  72.  Removal  from  Office  by  Summary  Pro- 
ceedings.— "When  an  information  in  writing,  verified 
by  the  oath  of  any  person,  is  presented  to  a  superior 
court,  alleging  that  any  officer  within  the  jurisdiction 
of  the  court  has  been  guilty  of  charging  and  collecting 
illegal  fees  for  services  rendered  or  to  be  rendered  in 
his  office,  or  has  refused  or  neglected  to  perform  the 
official  duties  pertaining  to  his  office,  the  court  must 
cite  the  party  charged  to  appear  before  the  court  at 
a  time  not  more  than  ten  nor  less  than  five  days 
from    the    time    the    information    was    presented,   and 


^^   73'    74  CEXERAL    REGULATIONS. 

on  that  day  or  some  other  subsequent  day,  not  more 
than  twenty  days  from  that  on  which  the  information 
was  presented,  must  proceed  to  hear,  in  a  summary 
manner,  the  information  and  evidence  offered  in  sup- 
port of  the  same,  and  the  answer  and  evidence  offered 
by  the  party  informed  against;  and  if  on  such  heanno-  it 
appears  that  the  charge  is  sustained,  the  court  must 
enter  a  decree  that  the  party  informed  against  be 
deprived  of  his  office,  and  must  enter  a  judgment  for 
five  hundred  dollars  in  favor  of  the  informer,  and  such 
costs  as  are  allowed  in  civil  cases."  {California.  Sec. 
J  J  2  Penal  Code.) 

In  addition  to  the  penalty  affixed  by  express  terms, 
to  every  neglect  or  violation  of  official  duty  on  the  part 
of  public  officers — State,  county,  city,  or  township — 
where  it  is  not  so  expressly  provided,  they  may,  in  the 
discretion  of  the  court,  be  removed  from  office.  {Cal- 
ifornia.    Sec.   66 1  Penal  Code. )     See  also  next  section. 

Arizona.     Sec.  lojg  Penal  Code. 

Idaho.     Sees.  J351,  745g  Revised  Statntes,  iSSy.   . 

ISTevada.     Sees.  jg^J  64  General  Statutes,  iS8^. 

\  yz-  Accusation  by  Grand  Jury.  An  accusa- 
tion in  writing  against  an\"  district,  county,  township,  or 
municipal  officer,  for  willful  or  corrupt  misconduct  in 
office,  may  be  presented  by  the  grand  jury  of  the  count) 
for  or  in  which  the  officer  accused  is  elected  or 
ajjjjointed."     {California.     Sec.  y ^8  Penal  Code.) 

Arizo7ta.     Sees.  /  ujj.  1206  Penal  Code. 

Idaho.      Sec.  744^  /"Revised  Statutes,  /SSy. 

Nevada.      Sees.  /5S6  g^  (ieneral  Statutes,  /S8^. 

I  74.     Absence  from  the  State.     I  he  sheriff  shall. 

in  no  case,  absent  himself  from  the  State  for  a  period  of 


GENERAL    REGULATIONS.  §§  JS-J? 

more  than  sixty  days,  and  for  no  period  without  the 
consent  of  the  Board  of  Supervisors  of  the  county/' 
{California.  Sec.  dy  Co.  Govt.  Bill,  Stats.  iSgj,  p. 
jdy;  Sec.  4120  Political  Code.) 

Arizona.     Sec.  4'/'/  Revised  Statutes,  iSSy. 

Idaho.     Sec.  1826  Revised  Statutes,  iSSy. 

§  75.    Conviction  of  Certain  Offenses. — When 

the  sheriff  is  committed  under  an  execution  or  commit- 
ment for  not  paying  over  money  received  by  him  by 
virtue  of  his  office,  and  remains  committed  for  sixty 
days,  his  office  is  vacant.  {California.  Stats.  i8g^, 
p.  j/j,  Sec.  loj;  Sec.  4186  Political  Code.) 

The  Board  of  Supervisors,  upon  receiving  a  certified 
copy  of  the  record  of  conviction  of  any  officer  for 
receiving  illegal  fees,  must  declare  his  office  vacant. 
{California.     Stats.  i8gj,p.  ^10.)    See  also  Sec.  yo  ante. 

Arizona.     Sec.  507  Revised  Statutes. 

Colorado.     Sec.  jjog  Mills  Ami.  Statutes,  i8gi. 

Idaho.     Sec.  64^6  Revised  Statutes,  i88y. 

Washington.     Sec.  igi  Penal  Code. 

§  76.    Withdrawal  of  Sureties. — After  the  with^ 

drawal  of  any  of  the  sureties  on  the  sheriff's  official 
bond,  in  the  manner  prescribed  in  Sections  972  to  974, 
Political  Code,  the  Superior  Judge  or  Judges  must 
make  an  order  declaring  the  office  vacant.  {Calif orniay 
Sec.  975  Political  Code.)     Compare: 

Arizona.     Sees.  jo8j-8  Revised  Statutes,  188"/. 

Colorado.     Sees.  814-^  Mills  Ann.  Stats,  i8gi. 

Idaho.     Sees.  412  y  Revised  Statutes,  188^. 

Nevada.     Sees,  iy^o-4  General  Stattttes,  188^. 

Washington.     Sees.  2gi2-i6  I  Hill's  Codes,  i8gi. 

%  yj.    How  Vacancy  Is  Filled. — A  vacancy  in  the 

office  is  filled  by  appointment  made  by  the   Board  of 


'§§  78-80  GENERAL    REGULATIONS. 

.'Supervisors.  Appointees  hold  until  the  vacancies  are 
:filled  by  election.  {^California.  Sec.  411 5  Pol.  Code.) 
Compare: 

Arizona.     Sec.  4^2  Revised  Statutes,  i88j. 

Colorado.  Sec.  g.  Art.  XIV  Constitution;  Sec.  i^Sg 
Mills. 

Idaho.     Sec.  1821  Revised  Statutes,  i88j. 

Montana.  Sees.  i04g,  i^8g,pp.  gj^,  1081,  Compiled 
Statutes,  188 J. 

Nevada.     Sees.   i6y6,  1684  General  Statutes,  188^. 

Oregon.     Sees.  2^^4,  2jgi  Hills  Codes,  i8g2. 

\  78.    Not  to  Be  Interested  in  Certain  Con- 

tractS.^The  sheriff  must  not  be  interested  in  any 
contract  made  by  him  in  his  official  capacity,  such  as 
contracts  for  sheriff's  advertising  and  the  like.  {Cali- 
fornia.    Sec.  g20  Penal  Code.) 

Arizona.     Sec.  J062  Revised  Statutes,  i88j. 

Colorado.     Sec.  12^0  Mills  Ann.  Stats.,  i8gi. 

Idaho.     Sec.  j6^  Revised  Statutes,  188'/. 

Nevada.     Sees.  lyii,   17 13  Genei^al  Statutes,  i88j. 

\  79.    Not  to  Purchase  at  Certain  Sales. — The 

sheriff  must  not  be  a  purchaser  at  any  sale  nor  vender 
at  any  purchase  made  by  him  in  his  official  capacity. 
y  {California.     Sec.  g2i  Penal  Code.) 

Arizona.     Sec.  jo6j  Revised  Statutes,  188'/. 
/Idaho.     Sec.  j66  Revised  Statutes,  1887. 

\  80.     Not  to  Deal  in  Scrip,  etc.— The  sheriff 

and  his  deputies  are  "i>rohibited  from  purchasing"  or 
sellinj^,  or  in  any  manner  rec(Mving  to  their  own  use  or 
l^enefit,  or  to  the  use  or  benefit  of  any  person  or  per- 
iions    whatever,    any  state,   county,  or   city    warrants, 


GENERAL    REGULATIONS.  §§  ^  ^    ^2 

scrip,  orders,  demands,  claims,  or  other  evidences  of 
indebtedness  against  the  state,  or  any  county  or  city 
thereof,  except  evidences  of  indebtedness  issued  to  or 
held  by  them  for  services  rendered  as  such  officer,  dep- 
uty, or  clerk,  and  evidences  of  the  funded  indebtedness 
of  such  state,  city,  town,  or  corporation."  {California. 
Sec.  g2j  Political  Code. ) 

Idaho.     Sec.  j68  Revised  Statutes,  iSSy. 

Nevada.     Sees.  lyod-y,  ijog  General  Statutes,  i88^. 

Washington.     Sec.  i^^  Penal  Code. 

§  8 1.  Penalty  for  Violation. — Any  person  vio- 
lating any  of  the  provisions  of  the  three  preceding  sec- 
tions "is  punishable  by  a  fine  of  not  more  than  one  thou- 
sand dollars,  or  by  imprisonment  in  the  State  prison 
not  more  than  five  years,  and  is  forever  disqualified 
from  holding  any  office  in  this  State."  [California. 
Sec.  yi  Penal  Code.) 

Arizona.     Sec.  104  Penal  Code. 

Idaho.     Sec.  6^84  Revised  Statutes,  i88j. 

Nevada.     Sec.  ijij  Genei^al  Statutes,  188^. 

§  82.  Expiration  of  Term— Execution  of  Pro- 
cess.— "When  any  process  remains  with  the  sheriff 
unexecuted,  in  whole  or  in  part,  at  the  time  of  his 
death,  resignation  of  office,  or  at  the  expiration  of  his 
term  of  oftice,  said  process  shall  be  executed  by  his 
successor  or  successors  in  office,  and  when  the  sheriff 
sells  real  estate,  under  and  by  virtue  of  an  execution 
or  order  of  Court,  he  or  his  successors  in  office  shall 
execute  and  deliver  to  the  purchaser  or  purchasers  all 
such  deeds  and  conveyances  as  are  required  by  law  and 
necessary  for  the  purpose,  and  such  deeds  and  convey- 
ances shall  be  as  valid  in  law  as  if  they  had  been  exe- 


§§  83,  84  GENERAL    REGULATIONS. 

cuted  by  the  sheriff  who  made  the  sale."  {^California, 
Statutes  i8g^,  pp,  373-4,  Sec.  loy.)     Compare: 

Arizona.     Sec.  ^ij  Revised  Statutes,  i88j. 

Colorado.     Sec.  8^8  Mills  Ann.  Statutes,  i8gi. 

Idaho.     Sec.  i8g3  Revised  Statutes,  1887. 

Montana.     Sec.  8^8,  p.  873,  Compiled  Statutes,  i88j. 

Nevada.     Sec.  2132  Genei^al  Statutes,  188^. 

Oregon.     Sec.  loiy  HiUs  Codes,  i8g2. 

%  ^Z-    Unfinished  Business — Compensation  of 

Successor. —  It  is  the  duty  of  the  sheriff  to  complete 
the  business  of  his  office  to  the  time  of  the  expiration 
of  his  term;  and  in  case  he  shall  leave  to  his  successor 
official  labor  to  be  performed,  which  it  was  his  duty  to 
perform,  he  shall  be  liable  to  pay  to  his  successor  the 
full  value  for  such  services.  {California.  Statutes 
1^93^  P-  511^  Sec.  22-/.) 

Washington.     Sec.  32^  I  Hill's  Codes,  i8gi. 

I  84.  To  Surrender  Books,  etc.,  to  Successor. 

— "Every  officer  whose  office  is  abolished  by  law,  or 
who,  after  the  expiration  of  the  time  for  which  he  may 
be  appointed  or  elected,  or  after  he  has  resigned  or 
been  leiL^ally  removed  from  office,  willfully  and  unlaw- 
fully withholds  or  detains  from  his  successor,  or  other 
person  entitled  thereto,  the  records,  papers,  documents, 
or  other  writing  appertaining  or  belonging  to  his  office, 
or  mutilates,  destroys,  or  takes  away  the  same,  is  pun- 
ishable by  imj)risonment  in  the  State  prison  not  less 
than  one  nor  more  than  ten  years."  {California.  Sec^ 
76  /'cnal  Code. ) 

Arizona.     Sec.  log  Penal  Code. 

Colorado.     Sec.  S^y  Mills  Ann.  Statutes,  iSgi. 

Idaho.     Sees.  i8g3,  iSg6,  (^38g  Rev.  Stats,  i88j. 


GENERAL    REGULATIONS.  §§  85,  86 

Montana.     Sec.  ii6,p.^ji,  Compiled  Statutes,  i88j. 
Nevada.     Sec.  i6g8  General  Statutes,  i88^. 
Oi^egon.     Sees.  loi^-ij  HiWs  Codes,  i8g2. 
Utah.     Sec.  440J  Compiled  Lazvs,  1888. 

\  85.  Resisting  Public  Officers. — "Every  per- 
son who  willfully  resists,  delays,  or  obstructs  any  pub- 
lic officer  in  the  discharge  or  attempt  to  discharge  any 
duty  of  his  office,  when  no  other  punishment  is  pre- 
scribed, is  punishable  by  fine  not  exceeding  five 
thousand  dollars,  and  imprisonment  in  the  county  jail 
not  exceeding  five  years." 

"Every  person  who  attempts,  by  means  of  any  threat 
or  violence,  to  deter  or  prevent  an  executive  officer 
from  performing  any  duty  imposed  upon  such  officer 
by  law,  or  who  knowingly  resists,  by  the  use  of  force 
or  violence,  such  officer,  in  the  performance  of  his  duty, 
is  punishable  by  fine  not  exceeding  five  thousand  dol- 
lars, and  imprisonment  in  the  county  jail  not  exceeding 
five  years."     {California.     Sees.  148,  6g  Penal  Code.) 

Arizona.     Sees.  2jj,  102  Penal  Code. 

Idaho.     Sec.  6^1^  Revised  Statutes,  188'/. 

Montana.     Sec.  120,  p.  5^2,  Compiled  Statutes,  188'/. 

Nevada.     Sec.  i6gg  General  Statutes,  i88§. 

Utah.     Sees.  4jg7,  4436  Compiled  Laws,  1888. 

Washington.     Sec.  ijg  Penal  Code. 

§  86.    Justifiable  Homicide  by  Public  Officers. 

— "Homicide  is  justifiable  when  committed  by  public 
officers  and  those  acting  by  their  command  in  their  aid 
and  assistance,  either — ■ 

"i.  In  obedience  to  any  judgment  of  a  competent 
court;  or, 

"2,  When  necessarily  committed  in  overcoming  act- 


§§  8;,  88  GENERAL    REGULATIONS. 

ual  resistance  to  the  execution  of  some  legal  process, 
or  in  the  discharge  of  any  other  legal  duty;  or, 

"3.  When  necessarily  committed  in  retaking  felons 
who  have  been  rescued  or  have  escaped,  or  when  nec- 
essarily committed  in  arresting  persons  charged  with 
felony,  and  who  are  fleeing  from  justice  or  resisting 
such  arrest."     [California.     Sec.  ig6  Penal  Code.) 

Arizona.     Sec.  284.  Penal  Code. 

Colorado.     Sees.  ii8g,  ^460-1  Mills  Anjt.  Statutes. 

Idaho.     Sec.  6^6g  Revised  Statutes,  i88y. 

Nevada.     Sec.  iyi6  General  Statutes,  188^. 

§  87.    Retaking  Goods  from  Officer. — "Every 

person  who  willfully  injures  or  destroys,  or  takes  or 
attempts  to  take,  or  assists  any  person  in  taking  or 
attempting  to  take,  from  the  custody  of  any  officer  or 
person,  any  personal  property  which  such  officer  or 
person  has  in  charge  under  any  process  of  law,  is  guilty 
of  a  misdemeanor."  {Calif 07mia.  Sec.  102  F^enal 
Code. ) 

•  Arizona.     Sec.  i^j  Penal  Code. 
Idaho.     Sec.  644^  Revised  Statutes,  i88y. 

%  88.    Giving  or  Offering  Bribes  to  Officer.^ 

"Every  person  who  gives  or  offers  any  bribe  to  any 
executive  officer  of  this  State,  with  intent  to  influence 
him  in  respect  to  any  act,  decision,  vote,  opinion,  or 
oth('r  proceeding  as  such  officer,  is  punishable  by 
imprisonment  in  the  State  prison  not  less  than  one  nor 
more  than  loinK^en  years,  and  is  tlisciualified  from 
holding  any  office  in  this  State."  [California.  Sec. 
6y  Penal  Code.) 

Arizona.     Sec.  /no  Penal  Code. 

Colorado.     Sec.  I2y^  A/ills  Ami.  Statutes,  i8gi. 


GENERAL    REGULATIONS.  §§  89-9 1 

Idaho.     Sec.  6j86  Revised  Statutes,  i88y. 
Montana.     Sees.  112-j  pp.  §2g,  ^jo  Compiled  Stat- 
utes, i88y. 

Nevada.     Sees.  i686-y  General  Statutes,  1885. 
Utah.     Sec.  4jg^  Compiled  Lazvs,  188^. 

§  89.    Fish  Nets— Confiscation  Unauthorized. 

— So  much  of  §  636  of  the  Penal  Code  of  California 
as  declares  that  all  nets,  etc.,  used  in  catching  or  taking- 
fish  in  violation  of  Chapter  i,  Title  XV,  of  said  code, 
shall  be  forfeited,  and  may  be  seized  by  the  peace 
officers  of  the  county,  and  by  them  destroyed  or  sold, 
is  unconstitutional  and  void.  (leck  vs.  Anderson,  57 
Cal,  251.)  Confiscations  without  a  judicial  hearing  and 
judgment,  kfter  due  notice,  are  void,  as  not  being  due 
process  of  law. 

§  90.  Computing  Time. — "  The  time  in  which  any 
act  provided  by  law  is  to  be  done  is  computed  by 
excluding  the  first  day  and  including  the  last,  unless 
the  last  day  is  a  holiday,  and  then  it  is  also  excluded." 
{California.     Sec.  12  Political  Code.) 

Arizona.     Sees.  g20,  2o6g  Revised  Statutes,  i88y. 

Idaho.     Sec.  11  Revised  Statutes,  188^. 

\  91.    When  Act  Falls  on  Holiday.— "Whenever 

any  act  of  a  secular  nature  other  than  a  work  of  neces- 
sity or  mercy,  is  appointed  by  law  or  contract  to  be 
performed  upon  a  particular  day,  which  day  falls  upon  a 
holiday,  such  act  may  be  performed  upon  the  next  bus- 
iness day  with  the  same  effect  as  if  it  had  been  per- 
formed upon  the  day  appointed."  {California.  Sec. 
I  J  Political  Code.) 

Arizona.     Sec.  20^0  Revised  Statutes,  188'/. 

Idaho.     Sec.  12  Revised  Statutes,  i88y. 


§  92  GENERAL    REGULATIONS. 

§  92.  Legal  Holidays. —  In  California  the  follow- 
ing are  legal  holidays:  Every  Sunday,  January  i,  Feb- 
ruary 22,  May  30,  July  4,  September  9,  the  first  Mon- 
day in  October,  December  25,  every  day  on  which  an 
election  is  held  throughout  the  State,  and  every  day 
appointed  by  the  President  of  the  United  States,  or 
by  the  governor  of  this  State,  for  a  public  fast,  thanks- 
giving, or  holiday.  If  the  first  day  of  January,  the  2 2d 
of  February,  the  30th  of  May,  the  4th  of  July,  the  9th 
of  September,  or  the  25th  of  December,  fall  upon  a 
Sunday,  the  Monday  following  is  a  holiday.     Compare: 

AHzona.     Sec.  2068  Revised  Statutes,  iSSy. 

Colorado.     Sec.  2i2y-8  Mills  Ann.  Statutes,  iSgi. 

Idaho.     Sec.  10  Revised  Statutes,  iSSy. 


CHAPTER 


CONSTABLES. 


§  93.  Nature  of  the  Office. 

§  94.  Duties  of  the  Office. 

§  95.  Appointment  of  Deputies. 

§  96.  Law  Governing  Acts  of  Constable?. 

§  97.  Arrest  Outside  of  County — Fees. 

§  93.  Nature  of  the  Office. — The  constable  is 
the  executive  officer  of  the  justice's  courts  in  his  town- 
ship, and  usually  has  by  statute  the  same  powers  and 
duties  as  to  the  court  and  its  process  as  the  sheriff  has 
with  reference  to  the  courts  of  record  of  the  county. 
{California.     Sees.  410^,  4^14-^  Politieal  Code.) 

I  94.  Duties  of  the  Office. — "Constables  must 
attend  the  courts  of  justices  of  the  peace  within  their 
townships  whenever  so  required,  and  within  their 
counties  execute,  serve,  and  return  all  process  and 
notices  directed  or  delivered  to  them  by  a  justice  of 
the  peace  of  such  county  or  by  any  competent  author- 
ity." They  also  have  the  same  general  duties  as  the 
sheriff,  excepting  as  to  the  custody  of  the  county  jail 
and  attendance  upon  courts  of  record,  as  mentioned  in 
Section  22,  ante.  Express  statutory  provision  is  also 
usually  made,  giving  the  constable  the  same  powers  as 
the  sheriff  in  cases  of  attachment,  replevin,  and  the 
like,  in  the  justice's  courts.  [California.  Sees,  ^j/^-5 
Political  Code;  Sees.  86g,  Sjo  Code  Civil  Procedure.) 


§§  95~"97  CONSTABLES. 

§  95.    Appointment  of  Deputies. — A  constable 

may  appoint  as  many  deputies  as  may  be  necessary  for 
the  prompt  and  faithful  discharge  of  the  duties  of  his 
office.  Such  appointment  must  be  made  in  writing 
and  filed  in  the  office  of  the  county  clerk;  and  until 
such  appointment  is  made  and  filed,  and  until  such 
deputy  shall  have  taken  the  oath  of  office,  no  one  shall 
be  or  act  as  such  deputy.  {California.  Sec.  61  Co. 
Govt.  Bill,  Stats.  iSgj,  p.  jdy. ) 

I  96.    Law  Governing  Acts  of  Constables. — 

As  the  duties  and  powers  of  constables  as  to  process 
issuing  from  justices'  courts  are  the  same  as  those  of 
the  sheriff  with  reference  to  process  from  the  courts  of 
record,  the  same  rules  of  procedure  and  court  decisions 
are  applicable.  Such  provisions  and  decisions  are  to 
be  found  in  the  several  chapters  of  this  work  devoted 
to  the  respective  subjects. 

Idaho.     Sec.  2ogi  Revised  Statutes,  188"/. 

§  97.    Arrest    Outside   of   County — Fees.— In 

California,  a  constable  may  go  outside  of  his  county 
to  execute  criminal  process  provided  the  same  be  prop- 
erly indorsed  as  provided  by  the  statute;  and  the  con- 
stable who  makes  such  arrest  is  entitled  to  his  fees  for 
traveling  both  wavs.     {Allen  vs.  Napa  County,  84  Cal. 

,87.) 


§ 

98. 

§ 

99- 

§  ^ 

oo. 

§  ^ 

OI. 

§  ^ 

02. 

§  1 

03- 

§  I 

04. 

§  ^ 

05- 

§  ^ 

06. 

§  I 

07. 

§  ^ 

08. 

§  J 

09. 

§  I 

10. 

§  ^ 

II. 

§  1 

12. 

§  ^ 

13- 

§  ^ 

14. 

§ 

[15- 

§ 

[16. 

§ 

[17. 

§ 

118. 

§ 

119. 

§ 

120. 

§ 

[21. 

§  I 

22. 

[23. 

§  I 

24. 

§-^ 

25- 

§  I 

26. 

CHAPTER    IV. 


SUMMONS. 

Office  and  Issuance  of  Summons. 

Prompt  Service  Due  to  Plaintiff. 

The  Receipt. 

The  Complaint. 

By  Whom  Served. 

How  Served,  Generally. 

Corporations,  Minors,  and  Insane  Persons. 

Service  on  Corporations — Decisions. 

Service  upon  Foreign  Corporations. 

Service  on  Minors. 

Service  on  Partnership. 

In  Actions  against  Vessels. 

Service  to  be  Personal. 

Long  Delay  in  Service  of  Summons. 

Inexcusable  Delay — Instances. 

Refusing  Service. 

Fraudulent  Service. 

Return — When  and  to  Whom  Made. 

Form  of  Return. 

True  Name  to  be  Given. 

Insufficient  Evidence  of  Service. 

Variation  of  Name — Idem  Sonans. 

Informal  Return — Presumptions. 

General  Return  Sufficient. 

Return  of  Deputy  Must  Be  Made  in  Name  of  Sheriff. 

Return  When  Not  Served  by  Officer. 

Sheriff's  Return  Not  Traversable. 

No  Service  after  Return. 

Erasures  in  Return. 


^S  q8-ioo  summons. 

§  127.  Correction  of  Return. 

§  128.  Amended  Summons — Service  of. 

§  129.  Criminal  Summons  against  Corporations. 

§  130.  Summons  in  Justices'  Courts. 

§  131.  Service  outside  the  County. 

§  132.  Unauthorized  Service  Set  Aside. 

§  98.    Office  and  Issuance  of  Summons. — The 

office  of  a  summons  is  to  ^ive  the  defendant  authentic 
notice  that  an  action  has  been  commenced  against  him, 
to  apprise  him  of  the  nature  and  amount  of  the  claim 
of  the  plaintiff,  and  to  compel  his  appearance  in  court 
to  answer  to  these  demands  within  a  time  stated,  un- 
der penalty  of  forfeiting  all  subsequent  right  to  dis- 
pute their  validity  or  to  prevent  their  enforcement.  (/ 
Waifs  Practice,  p.  468.) 

Summons  out  of  a  court  of  record  is  issued  under 
the  seal  of  the  court  and  signature  of  the  clerk. 

§  99.    Prompt  Service  Due  to  Plaintiff.— The 

service  of  the  summons — and,  in  fact,  of  any  process — 
should  not  be  unnecessarily  delayed.  The  plaintiff  is 
in  pursuit  of  his  rights,  and  he  may  reasonably  expect 
prompt  assistance  in  that  pursuit,  from  the  officers  upon 
whom  he  must  rely.  Delay  in  the  service  of  even  so 
simple  a  process  may  subject  him  to  irreparable  loss. 
He  is  entitled  by  right  to  every  facility  which  the  law 
allows  him  to  a  speedy  hearing  of  his  cause  before  the 
court. 

§  100.  The  Receipt. -The  original  summons 
should  Ije  indorsed  as  soon  as  received,  with  the 
month,  day,  year,  hour,  and  minute  of  its  reception; 
and,  whfMi  required  by  law,  copies  for  .service  prepared, 
and  compared  with   the  original,  to  insure  correctness, 


SUMMONS.  §§   lOI,   102 

and  a  copy  of  the  complaint  attached  to  each  copy  of 
the  summons.  {California.  Sec.  ^lo  Code  Civil  Pro- 
cedure; Sec.  4176  Penal  Code.) 

Arizona.     Sec.  6gg  Revised  Statutes,  i88y. 

Nevada.     Sec.  212^  General  Statutes,  188^. 

Idaho.     Sec.  1871  Revised  Statutes,  i88y. 

I  10 1.  The  Complaint. — x\  copy  of  the  complaint 
for  service  is  usually  furnished  to  the  officer  with  the 
original  summons,  when  required  for  service.  If  not 
so  furnished  and  the  officer  prepares  the  copy  by  re- 
quest of  the  plaintiff,  he  may  charge  his  lawful  fees  for 
making  such  copy.  If  the  case  is  brought  in  a  justice's 
court,  in  most  states  the  complaint  may  be  either  a  con- 
cise statement  in  writing  of  the  facts  constituting  the 
plaintiff's  cause  of  action  or  a  copy  of  the  account, 
note,  bill,  bond,  or  instrument  upon  which  the  action 
is  based.  (California.  Sec.  8^3  Code  Civil Procedtire.) 
Compare: 

AjHzona.     Sec.  1417  Revised  Statutes,  1887. 

Idaho.     Sec.  4668  Revised  Statutes,  i88y. 

Montana.     Sec.  77/  Code  Civil  Procedtire. 

Nevada.     Sees.  3553,  3536  Genei'-al  Statutes,  1885. 

Oregon.     Sees.  2072-74  I  Hilts  Codes,  i8g2. 

Utah.     Sec.  730  Code  Civil  Procedure. 
Washington.     Sees.  14^2-33,  II  Hill's  Codes,  i8gi. 

§  102.  By  Whom  Served. — The  code  and  statu- 
tory provisions  vary  much  in  different  states  as  to  the 
service  of  summons.  In  California,  Idaho,  and  Mon- 
tana, service  may  be  made  by  the  sheriff  or  by  any 
other  person  over  the  age  of  eighteen,  not  a  party  to 
the  action.  In  Arizona  it  may  be  served  by  the  sheriff 
or  any  constable  or  by  any  disinterested  person  compe- 


§   I03  SUMMONS. 

tent  to  make  oath  of  the  fact.  In  Colorado  the  sheriff 
or  his  deputy  or  any  person  not  a  party  to  the  action 
may  make  service.  In  Nevada  the  summons  may  be 
served  by  the  sheriff  or  his  deputy,  or  by  any  citizen  of 
the  United  States  over  twenty-one  years  of  age.  In 
Oregon  service  must  be  made  by  the  sheriff  or  his 
deputy,  or  by  a  person  appointed  by  him  or  by  the 
court  or  judge.  In  Utah  the  summons  must  be  served 
by  the  United  States  Marshal  or  by  the  sheriff  of  the 
county  where  the  defendant  is  found.  In  Washington 
the  summons  may  be  served  by  the  sheriff  or  by  his 
deputy  or  by  a  citizen  of  the  state  over  twenty-one 
years  of  age  who  is  competent  to  be  a  witness  in  the 
action,  other  than  the  plaintiff 

Arizona.     Sees.  6gg,  yoj  Revised  Statutes,  i88j. 

Califo7^7iia.     Sec.  ^lo  Code  Civil  Procedure. 

Colorado.     Sec.  jy  Code  Civil  Procedure. 

Idaho.     Sec.  41 4j  Revised  Statutes,  iSSy. 

Montana.     Sec.  7/  Code  Civil  Procedure. 

Nevada.     Sec.  jo^o  General  Statutes,  188^. 

Oregon.     Sec.  ^4  II  Hill s  Codes. 

Utah.     Sec.  26^  Code  Civil  Procedure. 

Washington.     Sec.  1^4  I  Hill's  Codes,  i8gi. 

I  103.    How  Served,  Generally. — In  California 

service  of  summons  is  made  by  delivering  to  each  of 
the  defendants  personally  a  copy  of  the  summons  and 
a  copy  of  the  complaint.  In  Arizona  a  copy  of  the 
complaint  need  be  delivered,  with  the  copy  of  sum- 
mons, only  to  such  defendants  as  are  served  outside  the 
county.  In  Colorado,  only  a  copy  of  the  summons  is 
recjuirc.d  to  be  served.  In  Idaho  a  copy  of  the  com- 
plaint must  be  served  with  the  summons,  unless  two  or 
more  defendants  are   residents  of  the  same  county,  in 


SUMMONS.  §    104 

which  case  a  copy  of  the  complaint  need  only  be  served 
upon  one  of  such  defendants.  In  Nevada  the  copy  of 
summons  served  must  be  attached  to  a  certified  copy  of 
the  complaint  in  all  cases.  In  Oregon  a  copy  of  the 
summons  is  delivered,  together  with  a  copy  of  the  com- 
plaint prepared  and  certified  by  the  plaintiff,  his  agent, 
or  attorney,  or  by  the  county  clerk.  In  Utah  a  certi- 
fied copy  of  the  complaint  must  be  served  with  the 
summons,  unless  two  or  more  defendants  reside  in  the 
same  district,  in  which  case  a  copy  of  the  complaint 
need  only  be  served  upon  one  of  such  defendants.  In 
Washington  service  is  made  by  delivery  of  a  copy,  cer- 
tified by  plaintiff's  attorney  or  the  sheriff,  together  with 
a  copy  of  the  complaint,  certified  by  the  plaintiff's  attor- 
ney or  the  clerk  of  the  court. 

In  Colorado,  Oregon,  Utah,  and  Washington,  service 
may  be  made  at  the  family  residence  upon  some  mem- 
ber of  the  defendant's  family  in  certain  cases. 

Arizona.     Sees,  yoi-2  Revised  Statutes,  i88j. 

California.     Sees.  410,  4 11  Code  Civil  Procedure. 

Colorado.     Sec.  j8  Code  Civil  Procedure. 

Idaho.     Sec.  41 4 j  Revised  Statutes,  iSSy. 

Montana.     Sees.  7/,  /^  Code  Civil  Procedure. 

Nevada.     Sec.  jo^i  General  Statutes,  188^. 

07'egon.     Sec.  55  I  Hill's  Codes,  i8g2. 

Utah.     Sees.  26y~8  Code  Civil  Proced2ire. 

Washington.     Sec.  ijj  II  Hilfs  Codes. 

\  104.  Corporations,  Minors,  and  Insane  Per- 
sons.— In  California  the  summons  is  served  by  deliv- 
ering a  copy  thereof  (and  of  the  complaint),  as  follows  : 

"  I.  If  the  suit  is  against  a  corporation  formed  under 
the  laws  of  this  State :  to  the  president  or  other  head 
of  the  corporation,  secretary,  cashier,  or  managing 
agent  thereof. 


§    I04  SUMMONS. 

"2.  If  the  suit  is  against  a  foreign  corporation,  or  a 
nonresident  joint  stock  company  or  association,  doing 
business  and  having  a  managing  or  business  agent, 
cashier,  or  secretary  within  this  State :  to  such  agent, 
cashier,  or  secretary. 

"3.  If  against  a  minor,  under  the  age  of  fourteen 
years,  residing  within  this  State  :  to  such  minor,  per- 
sonally, and  also  to  his  father,  mother,  or  guardian  ;  or 
if  there  be  none  within  this  State,  then  to  any  person 
having  the  care  or  control  of  such  minor,  or  with  whom 
he  resides,  or  in  whose  service  he  is  employed. 

"4.  If  against  a  person  residing  within  this  State 
who  has  been  judicially  declared  to  be  of  unsound  mind, 
or  incapable  of  conducting  his  own  affairs,  and  for 
whom  a  guardian  has  been  appointed :  to  such  person 
and  also  to  his  guardian, 

"5.  If  against  a  county,  city,  or  town  :  to  the  presi- 
dent of  the  Board  of  Supervisors,  president  of  the 
council,  or  trustees,  or  other  head  of  the  legislative 
department  thereof."     (.S"^^.  41 1  Code  Civil  Procedure^ 

More  or  less  similar  provisions  exist  in  other  states. 
In  Nevada,  special  provisions  exist  as  to  the  mode  of 
service  upon  California  corporations  doing  business  in 
that  State,  and  in  Arizona  there  are  no  special  pro- 
visions regulating  service  upon  minors  and  insane  per- 
sons, 

Arizona.     Sees.  702-^  Revised  Statutes,  iSSy. 

Colorado.     Sec.  j8  Code  Civil  Procedure. 

Idaho.     Sec.  41 4j  Revised  Statutes,  iSSy. 

Montana.     Sec.  72  Code  Civil  Procedure. 

Nevada.      Sec.  jo^  (ieneral  Statutes,  iSS^. 

Oregon.     Sec.  ^^  I  Hill's  Codes,  iSg2. 

Utah.     Sec.  268  Code  Civil  Procedure. 

Washington.     Sec.  lyj,  //  I  fill  s  Codes. 


SUMMONS.  §§   105,   106 

§  105.     Service  on  Corporations    Decisions. — 

The  manner  ot  service  upon  corporations,  insane  per- 
sons, counties,  cities  and  towns  in  California  is  pre- 
scribed in  Section  41  i  of  the  Code  of  Civil  Procedure. 
{Sec.  104  ante. ) 

In  an  action  against  a  corporation,  where  the  sum- 
mons was  served  upon  Bristol,  who  had  been  duly 
elected  its  president,  and  presided  at  several  meetings 
of  its  board  of  trustees,  and  who  had  never  resigned, 
or  been  removed,  or  his  office  declared  vacant,  or  a 
permanent  president  chosen  in  his  place,  though  he 
had  left  the  county  and  no  longer  took  any  part  in  the 
management  of  the  corporation  affairs,  and  at  the  meet- 
ing of  the  board  after  his  so  leaving  the  county,  another 
person  was  elected  president /r^  tern,  for  that  meeting, 
and  was  regarded  by  the  stockholders  as  the  president; 
held  that  Bristol  was  still  president  de  jure,  and  the 
service  upon  the  corporation  valid.  {Eel  River  N. 
Co.  vs.  Struver,  41  Cal.  618.) 

In  Rowe  vs.  Table  Mountain  W.  Co.,  10  Cal.  444,  a 
question  was  raised  as  to  the  regularity  of  a  judgment 
by  default,  on  a  service  of  the  summons  upon  one  M. 
as  president,  and  C.  as  secretary,  without  proof  beyond 
the  mere  return  that  those  persons  were  such  officers. 
The  court  held  that  as  the  statute  expressly  authorized 
a  service  upon  the  corporation  by  serving  the  summons 
on  their  officers,  and  as  the  practice  had  been  to  take 
judgment  by  default  upon  similar  returns,  they  would 
not  hold  it  erroneous. 

§  106.    Service  upon  Foreign  Corporations. — 

When  foreign  corporations  are  required  to  file  with  the 
Secretary  of  State  an  instrument  designating  a  person 
upon  whom  process  might  be  served,  service  of  sum- 


'§§  lOy,   1 08  SUMMONS. 

mons  upon  such  person  is  sufficient,  so  long  as  such 
■designation  is  not  revoked,  and  although  such  person 
is  not  one  of  the  officers  of  the  corporation  mentioned 
in  the  code  section  prescribing  the  persons  upon  whom 
service  of  summons  against  a  corporation,  may  be  made 
generally.  (Bureka  Lake  dr  Y.  C.  Co.  vs.  Superior 
Court,  66  Cal.  jii.) 

When  the  statute  provides  for  service  of  summons 
upon  the  "managing  agent  or  cashier"  of  a  foreign 
corporation,  service  upon  a  person  employed  as  clerk 
in  a  store  belonging  to  it  is  not  sufficient,  although  he 
has  the  custody  of  moneys  of  the  corporation,  keeps 
accounts  of  employes  and  pays  them.  {Blanc  vs.  Pay- 
master Alining  Co.,  95  Cal.  S^4-) 

§  107.  Service  on  Minors. — Under  the  California 
Code  provision  for  service  ot  summons  upon  minors 
{Sec.  104.  ante),  not  only  should  a  copy  of  the  summons 
be  delivered  to  each  minor,  but  a  copy  for  each  minor 
should  be  delivered  to  the  father,  mother,  or  guardian, 
or  the  person  having  the  care  or  control  of  such  minors, 
or  with  whom  they  reside,  or  in  whose  service  they  are 
employed. 

If  a  father  sues  his  infant  son  residing  with  him,  and 
the  statute  requires  the  summons  to  be  served  per- 
sonally on  the  infant  and  also  on  the  father,  a  service 
(jn  the  infant  alone  is  sufficient,  for  the  father  has  notice 
of  the  suit  without  service.  {Brown  vs.  Lazvson,  5/ 
Cal.  6/§.) 

^  los.    Service  on   Partnership. — "When  two 

(M'  innrc  persons,  associated  in  any  business,  transact 
such  business  under  a  common  name,  whether  it  com- 
j>rise  the   names  of  such  persons  or  not,  the-  associates 


SUMMONS.  §§   109,   I  10 

may  be  sued  by  such  common  name,  the  summons  in 
such  cases  being  served  dn  one  or  more  of  the  asso- 
ciates, and  the  judgment  in  the  action  shall  bind  the 
joint  property  of  all  the  associates,  in  the  same  manner 
as  if  all  had  been  named  defendants,  and  had  been  sued 
upon  their  joint  liability."  {^California.  Sec.  j88  Code 
Civil  Procedure. ) 

IdaJio.     Sec.  ^112  Revised  Statutes,  i88j. 

Montana.     Sec.  2^  Code  Civil  Procedure. 

Utah.     Sec.  2^6  Code  Civil  Procedu7'e. 

§  1 09.    In  Actions  against  Vessels. — I  n  an  action 

against  a  steamer,  vessel,  or  boat,  "the  summons  and 
copy  of  the  complaint  must  be  served  on  the  owners 
if  they  can  be  found,  otherwise  they  may  be  served 
on  the  master,  mate,  or  person  having  charge  of  the 
steamer,  vessel  or  boat."  [California.  Sec.  816  Code 
Civil  Procedure. ) 

Montana.     Sec.  214  Code  Civil  Procedure. 

\   no.    Service   to  be  Personal. — Unless   the 

statute  provides  otherwise,  as  in  Colorado,  Montana, 
Oregon,  and  Washington  [Sec.  loj  ante),  the  copy  of 
summons  must  be  delivered  to  the  defendant  person- 
ally. It  is  no  service  on  a  defendant  to  deliver  it  to 
any  relative  of  the  defendant  for  him.  In  case  of 
defendants  other  than  natural  persons  of  sound  mind 
and  over  the  age  of  majority,  care  must  be  taken  that 
the  service  be  made  strictly  according  to  the  require- 
ments of  the  statute. 

The  law  is  explicit  in  this  regard,  and  wisely  so ; 
for,  if  it  were  otherwise,  advantage  might  be  taken  in 
many  ways  by  evil-disposed  persons  to  defraud  defend- 
ants of  their  rights,     A  court  acquires  no  jurisdiction 


§§   III,   112  SUMMONS. 

over  a  defendant  who  has  not  been  legally  brought 
into  court. 

§  III.     Long  Delay  in  Service  of  Summons. — 

If  the  plaintiff  fails  to  prosecute  his  suit  with  reason- 
able diligence  the  suit  may  be  dismissed  on  motion  of 
the  defendant.  The  question  of  whether  the  delay  in 
prosecution  by  failure  to  serve  the  summons  is  reason- 
able, is  one  for  the  consideration  of  the  court  under  all 
the  circumstances  of  each  particular  case.  In  Califor- 
nia, since  1889,  an  action  may  be  dismissed  if  the  sum- 
mons is  not  served  and  returned  within  three  years  after 
the  commencement  of  the  action.  (Se^-.  ^81  C.  C.  P.) 
Under  this  provision,  however,  the  court  still  has  dis- 
cretionary power  to  dismiss  for  inexcusable  delay  before 
the  expiration  of  that  period.  {Kreiss  vs.  Hotaling, 
99  Cai.  383.) 

%   112.    Inexcusable   Delay- Instances. — If  a 

summons  is  not  served  until  three  years  after  the  com- 
plaint is  filed  and  it  is  issued,  and  there  is  no  reason- 
able excuse  for  the  delay,  the  service  will  be  set  aside, 
on  motion,  and  the  suit  dismissed.  {Eldridge  vs.  Kay, 
./5  Cal.  ^g.)  In  this  case  the  defendants  during  all 
the  time  were  living  within  a  short  distance  of  the 
plaintiff,  and  were  easy  to  be  found.  The  court  held 
that  such  delay  was  absolutely  without  excuse,  and  that 
it  would  b(-  a  practical  defeat  of  the  statute,  which  limits 
the  issuance  of  a  summons  to  the  period  of  one  year 
alter  th('  filing  of  the  complaint. 

When-  a  complaint  was  filed  and  summons  issued 
more  than  eight  years  before  service,  a  motion  to  set 
aside  the  siiininoiis  and  strike;  the  complaint  from  the 
files  was  i^roperK   L;r,iiUe(].      {Pupuy  vs.  Shear,  2g  Cal. 


SUMMONS.  §§   113,    114 

Allowing  an  action  to  rest  without  service  of  sum- 
mons,  for  two  years  and  eight  months  after  the  sum- 
mons is  issued,  is  such  a  want  of  diligence  as  to  justify 
the  court  in  dismissing  the  action.  {Grigsby  vs.  Napa 
Co.,  J 6  Cal.  585.) 

In  Oregon  the  summons  must  be  served  or  attempted 
to  be  served  before  the  expiration  of  the  time  provided 
by  the  statute  of  limitations,  or  the  action  will  be  barred. 
i^Secs.  14,  i^  Code  Civil  P  1^0 cediwe.) 

§  113.  Refusing  Service. — Serious  annoyances 
sometimes  occur  from  incomplete  service  of  summons, 
and  from  imperfect  returns  of  service.  Defendants 
often  attempt  to  avoid  service,  and  when  found  and 
the  summons  is  tendered  to  them,  refuse  to  take  it. 

It  is  a  sufficient  service  in  such  a  case  to  lay  the 
summons  upon  the  defendant's  arm  or  shoulder,  or 
reach  it  toward  him  and  let  go  of  it,  leaving  it  to  the 
defendant  to  take  or  let  it  alone.  It  does  not  lie  in  the 
mouth  of  a  person  to  say  he  was  not  served  with  pro- 
cess when  it  is  offered  to  him  and  he  refuses  to  take  it. 

§  114.    Fraudulent  Service. — A  trick,  depriving 

a  defendant  of  fair  notice  that  an  action  has  been  com- 
menced, is  a  fraud.  Thus,  if  one  departing  for  a  for- 
eign country,  when  on  the  steamer,  which  is  about  to 
start,  is  handed  a  sealed  package  containing  the  sum- 
mons, and  he  has  no  reasonable  opportunity  to  discover 
its  contents  before  leaving,  the  service  is  not  good. 
[Bulkley  vs.  Bulk  ley,  6  Abb.  Pr.  joy.) 

Service  of  summons  to  be  effective  must  have  been 
intended  as  such,  and  the  defendant  must  know  that 
service  was  intended.  [Heatheidy  vs.  Hadley,  2  O1'. 
2'/6;  Beckman  vs.   Cutter,  2  Code  Rep.  5//  Niles  vs. 


§   I  15  SUMMONS. 

Vandezee,  14  How,  P?\  S47!  Davison  vs.  Baker,  24 
How.  Pr.  jp.) 

There  are  numerous  authorities  declaring  that  where 
a  defendant  is  brought  into  the  territorial  jurisdiction 
of  the  court  by  force,  or  induced  to  come  within  the 
jurisdiction,  by  deceitful  or  fraudulent  practices,  for  the 
purpose  of  having  him  served  with  process  therein, 
such  service  is  not  good,  and  will  not  confer  jurisdic- 
tion, but  will  be  set  aside. 

Service  of  summons  upon  a  man  who  is  so  drunk 
that  he  cannot  comprehend  may  be  considered  in  its 
nature  fraudulent,  and  set  aside.  {A/ztrJ>/iy  vs.  Loos, 
lO/f.  III.  514.)  So  service  by  laying  a  summons  on  the 
body  of  a  man  too  sick  to  understand  it,  is  not  valid. 
{^People  vs.  Superior  Judge,  j8  Mich.  jio. ) 

§  115.    Return— When  and  to  Whom  Made. — 

The  summons  should  be  returned  as  soon  as  all  the 
defendants  have  been  served.  It  may  not  be  neces- 
sary for  any  purpose  that  it  should  be  returned  on  the 
same  day,  but  the  clerk's  office  is  the  proper  place  for 
all  process  after  service  and  where  all  the  parties 
interested  have  reason  to  look  for  it,  in  the  absence  of 
any  statute  to  the  contrary.  If  the  officer  is  instructed 
to  serve  only  a  portion  of  the  defendants,  and  there  are 
others  to  serve  elsewhere,  the  summons  should  be 
delivered  to  the  plaintiff  or  his  attorney,  to  enable  him 
to  secure  service  on  the  others. 

In  California,  Idaho,  Montana,  Nevada,  and  Utah, 
no  time  is  fixed  for  the  return  of  summons,  but  when 
it  is  served  by  the  sheriff,  it  must  be  returned,  with  his 
certificate  of  service,  to  the  office  of  the  clerk  from 
which  it  issued.  In  all  cas(;s  the  service  should  be 
made  j)romptly  and  n-turn  he  made  without  delay;  and 


SUMMONS.  §    1,1  6 

such  is  the  statutory  requirement  in  some  states^ 
Unless  otherwise  required  by  statute,  as  in  Colorado, 
where  the  summons  may  be  returned  "to  the  attorney 
who  issued  the  same,"  the  return  should  be  made  to  the 
clerk  of  the  court.  In  Colorado  it  is  to  be  returned 
"to  the  clerk  or  attorney  who  issued  the  same."  In 
Oregon  the  summons  must  be  returned  by  the  first  day 
of  the  next  term  of  court,  after  its  delivery  to  the  offi- 
cer for  service. 

Arizo7ia.     Sec.  6gg  Revised  Statutes,  iSSj. 

California.  Sec.  410  Code  Civil  Procedure,  Sec^ 
4176  Political  Code. 

Colorado.     Sec.  jy  Code  Civil  Procedure. 

Idaho.     Sec.  41 4 j  Revised  Statutes,  iSSy. 

Montana.     Sec.  7/  Code  Civil  Procedure. 

Nevada.     Sec.  jo^o  General  Statutes,  188^. 

Oregon.     Sec.  54  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  267  Code  Civil  Procedure. 

\  116.  Form  of  Return. — The  return  of  the  offi- 
cer should  be  in  the  form  of  a  certificate  showing  the 
name  of  the  person  served,  together  with  the  date  of 
service,  county  where  served,  and  that  a  copy  of  the 
complaint  was  also  served,  when  such  service  is  neces- 
sary. If  any  of  the  persons  cannot  be  found,  upon 
whom  service  is  required  to  be  made,  the  certificate 
should  show  that  the  sheriff  has  made  diligent  search 
within  his  county  but  is  unable  to  find  the  person,  nam- 
ing or  otherwise  properly  designating  him,  or  stating 
the  appropriate  facts.  The  return  should  show  clearly 
that  those  acts  have  been  done  which  the  statute 
requires  in  making  service.  If  the  service  is  required 
to  be  made  by  a  person  of  a  certain  age,  the  return 
should  show  that  the  person  was  of  that  age  at  the 


§    I  l6  SUMMONS. 

time  of  making  the  servnce.  [See  Sheriff' s  and  Con- 
stables Forms,  Chap.  XXXI,  post. ) 

In  case  of  service  upon  minors,  the  return  should  be 
sufficiently  explicit  to  show,  for  instance,  in  California, 
that  not  only  a  copy  of  the  summons  had  been  deliv- 
ered to  each  minor,  but  that  in  addition  thereto  a  copy 
was  delivered  to  the  father,  or  mother,  or  guardian,  etc., 
for  each  minor.  There  are  no  means  of  avoiding  the 
provision  of  the  code  which  requires  service  of  sum- 
mons upon  infant  defendants.  The  court  acquires 
jurisdiction  of  the  persons  of  infant  defendants,  so  as  to 
authorize  the  appointment  of  a  guardian  ad  litem  for 
them,  only  by  service  of  summons  upon  the  infants. 
The  same  rule  of  strictness  applies  in  the  case  of  the 
service  of  corporations  and  persons  of  unsound  mind. 
{See  Sections  lo^  and  no,  ante.) 

In  making  service  of  a  summons,  and  in  the  return 
of  such  service,  the  provisions  of  the  statute  must 
be,  and  must  be  shown  to  have  been,  substantially 
observed  and  followed  by  the  officer,  otherwise  the 
proceedings  cannot  be  supported  upon  a  direct  appeal 
taken.      {People  vs.  Bernal,  4J  Cal.  j8^.) 

A  reference  to  the  various  code  and  statutory  pro- 
visions as  to  proof  of  service  of  summons,  both  by  an 
officer  and  by  private  persons,  is  here  given. 

A  1^2 zona.     Sees.  J 06,  jog  Revised  Statutes,  i88y. 

California.     Sec.  41  ^  Code  Civil  Procedure. 

Colorado.     Sees,  ./o,  ./j  Code  Civil  Procediwe. 

Idaho.     Sec.  4148  Revised  Statutes,  iS8j. 

Montana.     Sec.  y /  Code  Civil  Procedure. 

Nevada.     Sees,  jo^^  6  Ceneral  Statutes,  /88^. 

Oregon.      Sec.  6/  /  Iliir s  Codes,  /8g2. 

Utah.     Sec.  Jjj  Code  Civil  Procedure. 

Washington.      Sec.  ij8  II  1 1  ills  Codes,  /8cj/. 


SUMMONS.  §§    I  I  7-1  19 

§  1 1 7.    True  Name  to  be  Given. — The  return 

of  the  officer  should  show  the  true  name  of  the  defend- 
ant served;  and,  to  ascertain  the  true  name,  he  should 
ask  the  party  served  if  the  name  designated  in  the 
summons  is  his  true  name.  If  the  name  in  the  sum- 
mons is  Alfred  Brown,  and  the  true  name  of  the  defend- 
ant is  Albert  Browne,  he  should  return  that  he  served 
the  summons  on  Alfred  Brown,  the  within-named 
defendant,  whose  true  name  is  Albert  Browne. 

§  118.    Insufficient  Evidence  of  Service. — In 

O'Brien  z>s.  Shaws  Flat  &  T.  C.  Co.,  10  Cal.  343, 
where  the  return  of  the  sheriff  showed  that  he  served 
the  summons  "upon  James  Street,  one  of  the  proprie- 
tors of  the  company,"  the  court  held  it  was  not  suffi- 
cient evidence  of  service  to  give  the  court  jurisdiction, 
and  that  the  summons  might,  with  as  much  propriety, 
have  been  served  upon  any  stranger. 

A  summons  from  a  justice's  court  was  addressed  to 
■defendants  Adams  &  Co.  The  constable  returned  that 
he  had  served  it  "by  leaving  a  copy  thereof  with  Cap- 
tain Charles  B.  Macy,"  with  the  date.  Judgment  by 
default  thereon  was  held  bad.  The  court  said  the 
justice  could,  with  as  much  propriety,  have  entered 
judgment  on  a  certificate  of  service  upon  any  other 
person.  [Adavis  vs.  Tozune,  j  Cal.  2^y.)  The  sher- 
iff's return  that  the  summons  was  served  on  one  of  the 
members  '\^  prima  facie  evidence  of  that  fact.  (  Wilson 
vs.  Spring  Hill  Co.,  10  Cal.  445.) 

§  119.    Variation  of  Name    Idem  Sonans.— 

When  the  service  is  required  to  be  made  upon  "Arthur" 
P.,  a  return  showing  service  upon  "A."  P.  is  insuffi- 
cient.     {Waiernian  vs.  Phinney,  i  Wash.  415.) 


v!    I20  SUMMONS. 

The  question  of  idon  sonans  is  one  of  pronunciation, 
not  of  spelling.  A  return  of  service  upon  "Rose"  K., 
"one  of  the  defendants,"  is  sufficient  to  support  a  de- 
fault against  "  Rosa"  K.,  the  names  being  substantially 
the  same  and  the  identity  prima  facie  established. 
{Galliano  vs.  Kilfoy,  g^  Cal.  86.) 

5   1 20.       Informal     Return— Presumptions. — 

Where  the  return  on  a  summons  states  that  a  copy  of 
the  summons  was  personally  serv^ed  on  the  defendant 
in  the  action,  giving  the  time  and  place,  this  return, 
although  informal,  is  held  in  Drake  vs.  Duvenick,  45 
Cal.  455,  to  be  sufficient  to  give  the  court  jurisdiction 
of  the  person,  so  that  the  judgment  is  not  void  for  want 
of  jurisdiction,  when  collaterally  attacked.  Also,  held 
that  while  such  return  does  not  show  that  a  copy  of  the 
complaint  was  not  delivered  to  the  defendant  person- 
ally, it  has  at  least  some  legal  tendency  to  prove  that  it 
was  so  delivered.  Also,  that  if,  in  such  a  case,  there  is 
more  than  one  defendant,  the  fact  that  the  return  does 
not  state  that  a  copy  of  the  complaint  was  served  with 
the  summons,  does  not  render  the  judgment  void  in  a 
collateral  attack. 

The  following  return  was  held  to  be  good  in  the  case 
of  Cardwell  vs.  Labichi,  59  Cal.  490:  "  I  hereby  cer- 
tify that  I  have  .served  the  within  summons  by  deliver- 
ing a  co])y  thereof,  together  with  true  copy  of  com- 
plaint, jKTsonally,  at  the  township  and  county  of  Los 
Angeles,  this  twenty-fifth  day  of  April,  1879.  W.  Bet- 
tis,  constable;,"  (;tc.  It  will  be  observed  that  this  return 
fails  to  state  upon  whom  summons  was  served,  but  as 
there  was  but  one  defenil.mt,  the  court  could  determine 
that  the  service  was  made  upon  him.  Nor  does  it 
state  thai  the  ro])y  of  c()m|)laint  d(;livered  was  a  copy  of 


SUMMONS.  5 


121 


the  complaint  in  the  action  mentioned  in  the  summons. 
It  also  fails  to  state  that  the  service  was  personal,  but 
only  that  the  officer  acted  in  person.  The  return  was 
held  to  be  sufficient  proof  of  service;  as,  whatever  may 
be  the  difference  between  superior  and  inferior  courts, 
with  reference  to  presumptions  indulged  in  their  favor, 
there  is  none  between  sheriffs  and  constables  [Political 
Code,  Sec.  4SisY  ^^^^  the  return  of  a  sheriff  is  p7'-ima 
facie  evidence  of  the  facts  stated  [Political  Code,  Sec. 
41  y 8);  and  by  force  of  section  4315  the  same  effect  is 
giverr  to  a  constable's  return. 

§  121.    General    Return  Sufficient.— Where  a 

general  power  of  serving  process  is  given  to  an  officer, 
a  general  return  is  sufficient.  [McMillan  vs.  Reynolds, 
II  Cal.  S79-)  ^^^  following  cases  are  also  cited  in 
point  to  prove  the  sufficiency  of  such  a  return:  [Caiitley 
vs.  Moody,  /  Po74.  [Ala.)  44 j;  Lenoir  vs.  Broadhead, 
50  Ala.  58;  Holsinger  vs.  Dunham,  11  Ind.  J46; 
Chandler  vs.  Miller,  11  Id.  j82;  Keithley  vs.  Boi'um, 
J  Miss.  68 j;  Crane  vs.  Brannan,  j  Cal.  ig^,  ig6.) 

In  its  opinion  in  the  case  of  Cardwell  vs.  Labichi 
(^g  Cal.,  4go),  the  court  cited  Sec.  849,  411,  and  415 
of  the  Code  of  Civil  Procedure,  and  Sees.  4315  and 
4176   of  the   Political  Code,  and  further  said: — 

"In  Legg  vs.  Stillman  et  al,  2  Cowan  418,  which 
was  certiorari  to  a  justice's  court,  the  suit  was  by  sum- 
mons in  the  court  below,  and  the  return  on  the  sum- 
mons was  as  follows:  '  Personally  served  May  14,  1822. 
Fees,  $0.13.  Thomas  McKnight,  Const.'  The  return 
was  held  sufficient.  In  the  case  cited,  the  objection  to 
the  judgment  was  made  in  a  collateral  action,  as  in  the 
case  before  us  for  decision.  The  judgment  was  ad- 
judged valid.      Our  views    in    this  case  are  in  accord 


§§   122-124  SUMMONS. 

with  the  ruling  in  Legg  vs.  Stillman,  which  ruling  meets 
our  approval.  In  the  case  cited,  the  time  and  manner 
of  service  were  shown,  and  in  this  case,  the  time,  man- 
ner, and  place  of  service  appear.  In  neither  case  is 
defendant  mentioned,  either  by  name  or  by  being  des- 
ignated as  defendant.  As  to  the  point  that  the  return 
does  not  show  that  the  copy  of  the  complaint  served 
was  the  copy  of  the  complaint  in  the  action  of  Perry  et 
al.  vs.  Wolfskin,  we  have  to  say  that  we  do  not  think 
it  tenable.  The  return  afforded  some  evidence  that  it 
was  such  copy,  and  we  cannot  say  that  the  proof  in 
this  regard  was  not  sufficient  to  authorize  the  justice  to 
render  a  judgment  by  default.  {See  Code  Civil  Pro- 
cedure, Sec.  Syi;  Drake  vs.  Duvenick,  ./5  Cal.  455-)" 

§  122.     Return  of  Deputy  Must  be  Made  in 

Name  of  Sheriflf. — The  return  of  a  deputy  sheriff,  on 
a  process  served,  is  a  nullity,  unless  made  in  the  name 
of  the  sheriff.  [Rozuley  vs.  Howard,  2j  Cal.  402.)  A 
summons  was  served  by  a  deputy  sheriff,  and  returned 
with  the  following  signature  to  the  return:  "Elijah  T. 
Cole,  D.  S."  It  was  held  that  this  return  was  insuffi- 
cient to  give  the  court  jurisdiction,  or  authorize  him  to 
enter  a  default  judgment, 

§  123.    Return  When  Not  Served  by  Officer. 

— An  affidavit  of  service  of  summons  in  California  by 
a  person  other  than  the  sheriff  should  state  that  such 
person  was  over  the  age  of  eighteen  at  the  time  of  such 
s(;rvic(,*,  and  not  a  party  to  the  action.  (.See  also  sec- 
tion 102,  ante.) 

%  124.     Sheriff's    Return   Not  Traversable. — 

The  return  of  the  sheriff  upon  process  or  notices  is 
prima  facie  (n'idence  of  the  ficts   in  such  return  stated 


SUMMONS.  §    125 

{California.  Sec.  4178  Political  Code);  and,  held  in 
Egery  vs.  Buchanan,  5  Cal.  56,  that  a  sheriff's  return 
is  not  traversable,  nor  can  it  be  attacked  collaterally, 
even  if  he  has  been  guilty  of  fraud  or  collusion.  While 
the  courts  may  sometimes,  under  certain  circumstances, 
overlook  irregularities  in  officers'  returns,  they  will  not 
do  so  in  all  cases.  The  language  of  the  law  relating 
to  the  service  of  process  should  be  closely  studied,  its 
directions  strictly  followed,  and  the  return  should  be 
made  in  strict  accordance  with  the  acts  performed,  as 
expressed  in  the  statutory  directions  laid  down  for  the 
officer's  observance.  Yet,  while  it  is  advisable  in  all 
cases  to  literally  comply  with  the  provisions  of  the  law, 
nothing  short  of  a  substantial  departure  therefrom  can 
properly  be  held  to  be  fatal  to  a  proceeding  under  it. 
"  Its  provisions  and  all  proceedings  under  it  are  to 
be  liberally  construed  with  a  view  to  effect  its  object 
and  to  promote  justice."  {Sec.  4  Code  of  Civil  Proced- 
ztre.)  For  example:  In  California  the  name  of  the 
plaintiff's  attorney  must  be  indorsed  on  the  summons 
{Sec.  4oy  Code  Civil  Procedure.^  In  the  case  of  Shinn 
vs.  Cummins  {2  W.  C  Rep.  216),  where  the  name  of 
plaintiff's  attorney  appeared  on  the  face  and  not  on  the 
back  of  the  summons,  it  was  held  that  defendant  was 
not  prejudiced  by  plaintiff's  failure  to  literally  comply 
with  the  statute. 

§  125.    No    Service   after    Return. — Where  a 

summons  has  been  returned,  it  is  functus  officio,  and 
subsequent  service  on  defendant  of  a  copy  made  by 
plaintiff  from  the  files  of  the  court  is  a  nullity.  (gg 
Cal.  jj6.) 

After  a  summons  has  been  served  on  some  of  the 
defendants  and  returned,  it  is  competent  for  the  court 


§§   126-129  SUMMONS. 

to  order  it  delivered  to  the  plaintiff  for  further  service 
on  other  defendants  in  the  same  or  another  county. 
{Hancock  vs.  Pruess,  40  Cal.  ^J2. ) 

§  126.  Erasures  in  Return. — Where  the  judg- 
ment of  the  court  recites  that  the  summons  was  served 
on  the  defendant,  the  fact  that,  years  afterward,  there 
appears  some  erasure  or  interlineation  on  the  sheriff's 
return,  is  not  sufficient  to  nullify  the  return,  in  the  ab- 
sence of  a  direct  attack  upon  it  for  fraud,  or  forgery 
or  alteration.     {Gregory  vs.  Ford,  14  Cal.  ij8.) 

I  127.  Correction  of  Return. — The  sheriff  may 
correct  and  may  be  compelled  to  correct  a  defective 
return,  but  not  to  alter  a  return  which  is  regular  on  its 
face.     ( Washington  M.  Co.  vs.  Kinnear,  I  Wash.  gg. ) 

§  128.       Amended    Summons— Service    of.^ 

Where  an  amended  complaint  is  filed  before  the  de- 
fendants have  been  brought  into  court  and  an  amended 
summons  issued,  a  statutory  provision  requiring  an 
amended  complaint  to  be  "served  on  the  defendants 
affected  thereby"  {Sec.  4J2  Code  Civil  Procedure, 
Cal.),  does  not  require  a  mode  of  service  of  summons 
differing  from  other  cases.  {Dozvling  vs.  Comerford, 
gg  Cal.  204.) 

\  129.  Criminal  Summons  against  Corpora- 
tion.—  In  California,  provision  is  made  for  criminal 
proceedings  against  a  corporation,  by  the  issuance  of 
a  summons  after  information  or  presentment.  The 
form  of  the  summons  and  the  time  and  manner  of  serv- 
ice aret  also  prescribed.      {Sees.  rjgo-~rjg2  Penal  Code.) 

Idaho.     Sees.  S222  4  Revised  Statutes,  iS8y. 

Utah.     .Sees.  77/   2  Code  Criminal  Procedure. 


SUMMONS.  §§   130-132 

§  130.     Summons    in    Justices'    Courts.— The 

practice  as.  to  contents,  issuance,  and  service  of  sum- 
mons in  justices'  courts  differs  greatly  in  different 
states.  A  reference  to  some  of  the  statutes  and  code 
provisions  is  here  given. 

Arizona.     Sees.  1412-1416  Revised  Statutes,   iSSy. 

California.     Sees.  8^^-84^  Code  Civil  Proeedure. 

Colorado.     Sees.  26j6-g  Mills  Ann.  St.,  i8gi. 

Idaho.     Sees.  4651,  46^6,  4660  Rev.  Stats.,  i88y. 

Montana.     See.  242-^44  Code  Civil  Proeedure. 

Nevada.     Sees.  J340,  3541  General  Statutes,  1883. 

Oregon.     Sees.  203g-2o6i  I  HilVs  Codes,  i8g2. 

Utah.     Sees.  J4j,  344,  j/^  Code  Civil  Proeeduj-e. 

Washington.     Sees.  1 433-1 462  II  Hill 's  Codes. 


\  131.    Service  outside  the  County.— When  a 

summons,  issued  by  a  justice  of  the  peace,  is  to  be 
served  out  of  the  county  in  which  it  was  issued,  the 
summons  must  have  attached  to  it  a  certificate  under 
seal  by  the  county  clerk  of  such  county,  to  the  effect 
that  the  person  issuing  the  same  was  an  acting  justice 
of  the  peace  at  the  date  of  the  summons.  The  copy 
of  summons  served  by  the  officer  should  have  attached 
to  it  a  copy  of  such  certificate.  {California.  See.  84g 
Code  Civil  Proeedure. ) 

§  132.     Unauthorized    Service    Set    Aside. — 

When  a  summons  in  a  justice's  court  action  is  served 
outside  of  the  county,  contrary  to  the  statute,  the  jus- 
tice of  the  peace  may  entertain  a  motion  to  set  aside 
the  service,  such  motion  being  made  upon  affidavits 
showing  the  grounds.      {^History  Co.  vs.  Light,  gj  Cat. 

56.) 


CHAPTER  V. 

SUBPCENAS    AND    CITATIONS. 

Subpoena  for  Witness  Defined. 

Civil  Subpoena — By  Whom  Issued. 

Issuance  by  Justice  of  Peace. 

May  Be  Issued  with  Blank. 

How  Served — Witness  Fees. 

Failure  to  Pay  or  Tender  Witness  Fees. 

Witness  on  Behalf  of  the  State. 

Production  of  Prisoner  as  Witness. 

Witness  before  Supervisors. 

Witness  out  of  County — Attendance. 

Concealed  Witness. 

Witnesses  Protected  from  Arrest. 

When  Arrest  of  Witness  Is  Void. 

Liability  of  Officer  for  Detention  of  Witness. 

Discharge  of  Witness  from  Arrest. 

Arrest  and  Commitment  for  Contempt. 

Criminal  Subpoena — By  Whom  Issued. 

By  Whom  and  How  Served. 

Production  of  Prisoner  as  Witness. 

Witness  out  of  County — Attendance. 

Expenses  of  Witnesses. 

Citation  Defined. 

Service  of  Citation. 

Subpoena  for  Witness  Defined.     "Ihc 

proct'ss  \)y  which  the  Jitte*ncl;inc('  of  a  witiK-ss  is  n^qiiircd 
is  a  siil)|)(iiia.  it  is  a  writ  or  order  tlircctccl  to  a  jx'rson 
and    r((|iiiriiiL;'   liis  att(Mi(laiic<"  at  a   particular  time  aiul 


§ 

t33- 

s 

t34- 

§ 

[35- 

§ 

^36. 

§  1 

37- 

§  ] 

38. 

§ 

[39- 

§ 

40. 

i 

[41. 

§  1 

42. 

§ 

t43- 

§ 

44- 

§ 

[45- 

§ 

[46. 

§ 

[47- 

§ 

[48. 

s 

[49. 

s 

150. 

^ 

'51- 

^ 

52. 

^ 

t53- 

^  ^ 

54- 

s 

'.55- 

§ 

133- 

SUBPOENAS    AND    CITATIONS.  §   1 34 

place  to  testify  as  a  witness.  It  may  also  require  him 
to  bring  with  him  any  books,  documents,  or  other 
things  under  his  control  which  he  is  bound  by  law  to 
produce  in  evidence,"  in  which  last  case  it  is  termed  a 
subpoena  duces  tecum.    {California.    Sec.  igS^  C.  C.  P.) 

CIVIL  SUBPOENA. 
§  1 34.    Civil  Subpoena    By  Whom  Issued.— A 

subpoena  in  a  civil  action  or  proceeding  is  issued  as  fol- 
lows : — 

"  I.  To  require  attendance  before  a  court,  or  at  the 
trial  of  an  issue  therein,  it  is  issued  under  the  seal  of 
the  court  before  which  the  attendance  is  required,  or  in 
which  the  issue  is  pending. 

"  2.  To  require  attendance  out  of  the  court,  before  a 
judge,  justice  or  other  officer  authorized  to  administer 
oaths  or  take  testimony  in  any  matter  under  the  laws  of 
this  State,  it  is  issued  by  the  judge,  justice  or  any  other 
officer  before  whom  the  attendance  is  required. 

"3.  To  require  attendance  before  a  commissioner 
appointed  to  take  testimony  by  a  court  of  a  foreign 
country,  or  of  the  United  States,  or  of  any  other  state 
in  the  United  States,  or  of  any  other  district  or  county 
within  this  State,  or  before  any  officer  or  officers  em- 
powered by  the  laws  of  the  United. States  to  take  testi- 
mony, it  may  be  issued  by  any  judge  or  justice  of  the 
peace  in  places  within  their  respective  jurisdiction,  with 
like  power  to  enforce  attendance ;  and,  upon  certificate 
of  contumacy  to  said  court,  to  punish  contempt  of  their 
process,  as  such  judge  or  justice  could  exercise  if  the 
subpoena  directed  the  attendance  of  the  witness  before 
their  courts  in  a  matter  pending  therein."  {California. 
Sec.  ig86  Code  Civil  Procedure.) 


§§   I  35"  I  37  SUBPCENAS    AxXD    CITATIONS. 

§  135.  Issuance  by  Justice  of  Peace.-^" Jus- 
tices of  the  peace  may  issue  subpccnas  in  any  action  or 
proceeding  in  the  courts  held  by  them,  and  final  pro- 
cess on  any  judgment  recovered  therein,  to  any  part  of 
the  county."      {California.     Sec.  gig  C.  C.  P.) 

I  136.  May  Be  Issued  with  Blank. — "The  sum- 
mons, execution  and  every  other  paper  made  or  issued 
by  a  justice,  except  a  subpoena,  must  be  issued  without 
a  blank  left  to  be  filled  by  another,  otherwise  it  is  void." 
{California.     Sec.  g20  Code  Civil  Pi'ocedtc're.) 

I  137.     How    Served.™Witness    Fees.— "The 

service  of  a  subpoena  (in  civil  proceedings)  is  made  by 
showing  the  original  and  delivering  a  copy,  or  a  ticket 
containing  its  substance  to  the  witness  personally,  giv- 
ing or  offering  to  him  at  the  same  time,  if  demanded  by 
him,  the  fees  to  which  he  is  entitled  for  travel  to  and 
from  the  place  designated,  and  one  day's  attendance 
there.  The  service  must  be  made  so  as  to  allow  the 
witness  a  reasonable  time  for  preparation  and  travel  to 
the  place  of  attendance.  Such  service  may  be  made 
by  any  person."     {California.     Sec.  igSy  C  C  P.) 

In  California  witnesses  are  allowed,  for  attending  in 
any  civil  suit  or  proceeding,  before  any  court  of  record, 
referee,  commissioner  or  justice  of  the  peace,  for  each 
day,  $2.00 ;  for  traveling  to  the  place  of  trial,  for  each 
mile,  twenty  cents,  excepting  for  witnesses  before  a  jus- 
tice of  th<;Jpeace  in  Monterey  County,  in  civil  cases, 
wh(j  are  entitled  to  $2.00  per  day,  but  no  mileage. 
In  case  of  impeachment  and  contested  elections,  for 
tra\ cling  to'the  place;  of  trial,  ten  cents  per  mile.  {Stal- 
ji/cs  iS6g  JO,  pp.  lyS  g.) 

"Witnesses  siiinmoncd    to  t(;stify  on    liehalf  of    the 


SUBPCENAS    AND    CITATIONS.  §§   I38-I4O 

•county  in  matters  of  public  concern  before  the  Board 
of  Supervisors  are  not  entitled  to  have  their  fees  pre- 
paid ;  but  the  Board  must  allow  them  reasonable  com- 
pensation for  the  expenses  of  their  attendance."  {Sees. 
j2,  jj  Co.  Govt.  Act,  Stats.  i8gj,  p.  j6i;  Sec.  406^ 
Political  Code.) 

I  1 38.    Failure  to  Pay  or  Tender  Witness  Fees. 

— No  person  shall  be  obliged  to  attend  and  testify  in 
a  civil  action,  unless  his  fees  shall  have  been  tendered, 
or  he  shall  have  not  demanded  the  same.  {California. 
Sec.  igSy  Code  Civil  Procedure.) 

§  1 39.  Witness  on  Behalf  of  the  State.— Sec- 
tions 43  and  44  of  an  Act  to  Regulate  F'ees,  approved 
March  5,  1870  (California)  provides  as  follows: — 

"  The  attorney  general,  or  any  district  attorney,  is 
authorized  to  cause  subpoenas  to  be  issued,  and  compel 
the  attendance  of  witnesses  on  behalf  of  the  State, 
without  paying  or  tendering  fees  in  advance,  to  either 
officers  or  witnesses ;  and  any  witness  refusing  or  fail- 
ing to  attend,  after  being  served  with  a  subpoena,  may 
be  proceeded  against,  and  shall  be  liable  in  the  same 
manner  as  is  provided  by  law  in  other  cases  where  fees 
have  been  tendered  or  paid. 

"The  clerk  of  any  court  before  which  any  witness 
shall  have  attended  on  behalf  of  the  State,  in  any  civil 
action,  shall  give  to  such  witness  a  certificate,  under 
seal,  of  travel  and  attendance,  which  shall  entitle  him 
to  receive  the  same  from  the  State  treasury  on  the 
controller's  warrant."  [California.  Statutes  iSdg-yo, 
p.  180.)     See  also  Sec.  IJ26  Penal  Code. 

§  140.    Production  of  Prisoner  as  Witness. — 

*'  If   the  witness    be  a  prisoner,   confined  in  a  jail  or 


§§   141,   1 42  SUBPCENAS    AND    CITATIONS. 

prison  within  this  State,  an  order  for  his  examination 
in  the  prison  upon  deposition,  or  for  his  temporary 
removal  and  production  before  a  court  or  officer,  for 
the  purpose  of  being  orally  examined,  may  be  made  as 
follows  :  ( I )  By  the  court  itself  in  which  the  action  or 
special  proceeding  is  pending,  unless  it  be  a  Justice's 
Court :  (2)  by  a  justice  of  the  Supreme  Court,  or  a 
judge  of  the  Superior  Court  of  the  county  where  the 
action  or  proceeding  is  pending,  if  pending  before  a 
Justice's  Court,  or  before  a  judge  or  other  person  out 
of  court.  Such  order  can  only  be  made  on  the  motion 
of  a  party,  upon  affidavit  showing  the  nature  of  the 
action  or  proceeding,  the  testimony  expected  from  the 
witness,  and  its  materiality.  If  the  witness  be  impris- 
oned in  the  county  where  the  action  or  proceeding  is 
pending,  his  production  may  be  required.  In  all  other 
cases,  his  examination,  when  allowed,  must  be  taken 
upon  deposition."  {California.  Sees,  igg^-y  Code 
Civil  Procedure. ) 

§  141.  Witness  before  Supervisors.— In  Cali- 
fornia, provision  is  made  for  the  issuance  of  a  subpoena 
by  the  chairman  of  the  ■  Board  of  Supervisors,  com- 
manding the  witness  to  appear  before  the  board.  This 
subpoena  is  to  be  served  by  the  sheriff,  and  for  diso- 
bedience thereto  the  witness  may  be  arrested  by  attach- 
ment issued  by  a  judge  of  the  Superior  Court,  who 
may  impose  the  same  penalties  as  in  case  of  a  witness 
subpoenaed  to  appear  and  give  evidence  on  the  trial  of 
a  civil  cause  before  a  Superior  Court.  {California. 
Sees.  2S,  2()  Co.  (iovt.  Bill.) 

\  142.     Witness  out  of  County    Attendance.— 

"A  witness  is  nol  obliL-cd  to  attend  as  a  witness  before 


SUBPCENAS    AND    CITATIONS.  §§    1 43- 1  45 

any  court,  judge,  justice,  or  any  other  officer,  out  of 
the  county  in  which  he  resides  (in  civil  proceedings), 
unless  the  distance  be  less  than  thirty  miles  from  his 
place  of  residence  to  the  place  of  trial."  {California. 
Sec.  igSg  Code  Civil  Procedure. ) 

§  1 43.  Concealed  Witness. — "  I  f  a  witness  is  con- 
cealed in  a  building  or  vessel,  so  as  to  prevent  the 
service  of  a  subpoena  upon  him,  any  court  or  judge,  or 
any  officer  issuing  a  subpoena,  may,  upon  proof  by 
affidavit  of  the  concealment,  and  of  the  materiality  of 
the  witness,  make  an  order  that  the  sheriff  of  the  county 
serve  the  subpoena  ;  and  the  sheriff  must  serve  it  accord- 
ingly, and  for  that  purpose  may  break  into  the  building 
or  vessel  where  the  witness  is  concealed."  [California. 
Sec.  ig88  Code  Civil  Procedure.^ 

§   144.    Witnesses  Protected  from  Arrest. — 

"  Every  person  who  has  been,  in  good  faith,  served 
with  a  subpoena  to  attend  as  a  witness  before  a  court, 
judge,  commissioner,  referee  or  other  person,  in  a  case 
where  the  disobedience  of  the  witness  may  be  punished 
as  a  contempt,  is  exonerated  from  arrest  in  a  civil 
action  while  going  to  the  place  of  attendance,  neces- 
sarily remaining  there  and  returning  therefrom."  [Cali- 
fornia.    Sec.  2o6y  Code  Civil  Procedttir. ) 

§  145.    When  Arrest  of  Witness  Is  Void. — 

"  The  arrest  of  a  witness,  contrary  to  the  preceding 
section,  is  void,  and  when  willfully  made,  is  a  contempt 
of  the  court ;  and  the  person  making  it  is  responsible 
to  the  witness  arrested  for  double  the  amount  of  the 
damages  which  may  be  assessed  against  him,  and  is 
also  liable  to  an  action  at  the  suit  of  the  party  serving 


§§   146,   147  SUBPCEXAS    AND    CITATIONS. 

the  witness  with  a  subpoena,  for  the  damages  sustained 
by  him  in  consequence  of  the  arrest."  {California. 
Sec.  2068  Code  Civil  Procedure.) 

I  146.    Liability  of  Officer  for  Detention  of 

Witness. — "An  officer  is  not  liable  to  the  party  for 
making  the  arrest  in  ignorance  of  the  facts  creating 
the  exoneration,  but  is  liable  for  any  subsequent  deten- 
tion of  the  party,  if  such  party  claim  the  exemption  and 
make  an  affidavit  stating  :- — 

"  I.  That  he  has  been  served  with  a  subpoena  to 
attend  as  a  witness  before  a  court,  officer,  or  other  per- 
son, specifying  the  same,  the  place  of  attendance  and 
the  action  or  proceeding  in  which  the  subpoena  was 
issued  ;  and, 

"2.  That  he  has  not  thus  been  served  by  his  own 
procurement,  with  the  intention  of  avoiding  an  arrest ; 

"3.  That  he  is  at  the  time  going  to  the  place  of 
attendance,  or  returninir  therefrom,  or  remaining  there 
in  obedience  to  the  subpoena. 

"The  affidavit  may  be  taken  by  the  officer,  and 
exonerates  him  from  liability  for  discharging  the  witness 
when  arrested."  {Calif orma.  Sec.  2o6g  Code  Civil 
Procedure. ) 

I  14;.     Discharge  of  Witness  from  Arrest. — 

The  court  or  officer  issuing  the  subpoena,  and  the 
court  or  officer  before  whom  the  attendance  is  required, 
may  discharge  the  witness  from  an  arrest  made  during 
the  time  h<;  is  (;x(:m|jt  {Sec.  i/f.^  ante).  If  the  court 
have  adjourned  bcfon;  the  arrest,  or  before  application 
for  the  <lischarg(',  a  judge  of  the  court  may  grant  the 
tlischarg*:.  {California.  Sec.  2oyo  Code  Civil  Pro- 
cedure. ) 


SUBPIENAS    AND    CITATIONS.  ^^    I48,    1 49 

§  148.    Arrest  and  Commitment  for  Contempt. 

— "Disobedience  to  a  subpoena,  or  a  refusal  to  be 
sworn,  or  to  answer  as  a  witness,  or  to  subscribe  an 
affidavit  or  deposition  when  required,  may  be  punished 
as  a  contempt  by  the  court  or  officer  issuing  the  sub- 
poena or  requiring  the  witness  to  be  sworn  ;  "  and  "every 
warrant  to  arrest  or  commit  a  witness  must  be  directed 
to  the  sheriff  of  the  county  where  the  witness  may  be, 
and  must  be  executed  by  him  in  the  sanie  manner  as 
process  issued  by  the  Superior  Court."  [California. 
Sees.  iggi.  1994  Code  Civil  Procedure.^ 


CRIMINAL    SUBPCENA. 
§  149.     Criminal  Subpoena— By  Whom  Issued. 

■ — In  CaHtornia,  a  subpoena  in  any  criminal  proceeding 
may  be  signed  and  issued  by: — 

"i.  A  maofistrate  before  whom  an  information  is 
laid,  for  witnesses  in  the  State,  either  on  behalf  of  the 
people  or  of  the  defendant. 

"2.  The  district  attorney,  for  witnesses  in  the  State, 
in  support  of  the  prosecution,  or  for  such  other  wit- 
nesses as  the  grand  jury,  upon  an  investigation  pend- 
ing- before  them,  mav  direct. 

"3.  The  district  attorney,  for  witnesses  in  the  State, 
in  support  of  an  indictment  to  appear  before  the  court 
in  which  it  is  to  be  tried. 

"4.  The  clerk  of  the  court  in  which  the  indictment 
is  to  be  tried;  and  he  must,  at  any  time,  upon  applica- 
tion of  the  defendant,  and  without  charge,  issue  as 
many  blank  subpoenas,  subscribed  by  him  as  clerk,  for 
witnesses  in  the  State,  as  the  defendant  may  require." 
{California.     Sec.  IJ26  Penal  Code.) 


§    150-153  SUBPCENAS    AND    CITATIONS. 

§  150.     By  Whom  and  How  Served.— "A  sub 

poena  may  be  served  by  any  person,  but  a  peace  officer 
must  serve  in  his  county  any  subpoena  delivered  to  him 
for  service,  either  on  the  part  of  the  people  or  of  the 
defendant,  and  must,  without  delay,  make  a  written 
return  of  the  service,  subscribed  by  him,  stating  the 
time  and  place  of  service.  The  service  is  made  by 
showing  the  original  to  the  witness  personally  and  in- 
forming him  of  its  contents."  [California.  Sec.  IJ28 
Penal  Code.) 

§  151.    Production  of  Prisoner  as  Witness. — 

In  California,  provision  is  made  for  the  removal  of  a 
prisoner  from  the  State  prison  or  the  county  jail  of  an- 
other county  upon  order  of  any  court  of  record  or  judge 
thereof  when  his  testimony  is  required  in  a  criminal 
action;  and  the  sheriff  is  required  to  execute  such  order. 
{Sec.  /JJJ  Penal  Code.) 

§  152.     Witness  out  of  County    Attendance. 

— "  No  person  is  obliged  to  attend  as  a  witness  before 
a  court  or  magistrate  out  of  the  county  where  the  wit- 
ness resides  or  is  served  with  the  subpcena,  unless  the 
judge  of  the  court  in  which  the  offense  is  triable,  or  a 
justice  of  the  Supreme  Court,  or  a  Superior  Court 
judge,  upon  an  affidavit  of  the  district  attorney  or  pros- 
ecutor, or  of  the  defendant  or  his  counsel,  stating  that 
he  believes  the  evidence  of  the  witness  is  material  and 
his  attendance  at  the  examination  or  trial  necessary, 
shall  indorsi;  on  th(t  subpcena  an  order  for  the  attend- 
anc<!  of  the  witness."  {California.  Sec.  ijjo  Penal 
Code. ) 

^  153.     Expense  of  Witnesses.     "\\h(Mi  a  per- 
son attends  before  a  magistrate,  '-rand  iur\-,  or  court,  as 


SUBPCENAS    AND    CITATIONS.  §§   I  54,   I  55 

a  witness  in  a  criminal  case,  upon  a  subpoena,  or  in 
pursuance  of  an  undertaking,  and  it  appears  that  he 
has  come  from  a  place  outside  of  the  county,  or  that  he 
is  poor  and  unable  to  pay  the  expenses  of  such  attend- 
ance, the  court,  at  its  discretion,  if  the  attendance  of 
the  witness  be  upon  a  trial,  by  an  order  upon  its  min- 
utes, or,  in  any  other  case,  the  judge,  at  his  discretion, 
by  a  written  order,  may  direct  the  county  auditor  to 
draw  his  warrant  upon  the  county  treasurer  in  favor  of 
the  witness  for  a  reasonable  sum,  to  be  specified  in  the 
order,  for  the  necessary  expenses  of  the  witness."  {Cal- 
ifornia.    Sec.  ij2g  Penal  Code.) 

CITATION. 

§  154.  Citation  Defined. — A  citation  is  a  direc- 
tion issued  by  the  clerk  of  a  court  of  record  under  seal 
of  the  court,  requiring  the  person  cited  to  appear  at  a 
time  and  place  specified.  {California.  Sec.  lyoj  Code 
Civil  Procedure. ) 

§  155.    Service  of  Citation. — A  citation  must  be 

served  in  the  same  manner  as  a  summons  in  a  civil 
action,  and  must  be  served  at  least  five  days  before  the 
return  day  thereof.  {California.  Sees,  ijog,  ijii 
Code  Civil  Procedtwe. ) 


CHAPTER    VI 


ARREST    AND    BAIL. 

Restrictions  upon  Imprisonment  in  Civil  Actions. 

Arrest  for  Fraud. 

The  Order  of  Arrest. 

Temporary  Exemptions  from  Arrest. 

Remedy,  when  Applicable. 

Void  Order  of  Arrest. 

Service  of  Order  of  Arrest. 

Sheriff's  Expenses. 

Failure  to  Pay  Expenses. 

When  Defendant  May  Be  Discharged. 

Surrender  of  Defendant. 

Liability  of  Sheriff  and  Sureties. 

Liable  for  Permitting  an  Escape. 

Liable  for  a  Rescue. 

No  Action  for  Escape  or  Rescue  after  Recapture. 

Exception  to  Sureties. 

Justification  of  Sureties. 

Deposit  of  Bail  Money. 

Sheriff  Liable  for  Escape. 

Discharge  Final. 

^   156.      Restrictions  upon    Imprisonment  in 

Civil  Actions.  I  li<'  constitutions  of  nearly  all  the 
states  contain  a  i>rovision  similar  to  that  in  the  decla- 
ration of  rij^rhts  of  the  Constitution  of  California,  to  wit: 
that  "no  person  shall  he  imj^risoned  for  debt  in  any 
civil   action,  on  mesne  or  hnal  procc^ss,  except   in  cases 


§  ^ 

56. 

§  ^ 

[57- 

§  1 

:58. 

§  ^ 

59- 

§  ] 

60. 

§  ^ 

61. 

§ ' 

62. 

§ 

[63. 

§ 

[64. 

§  ^ 

t65. 

§ 

[66. 

§  ^ 

[67. 

§  J 

68. 

^  1 

69. 

§ 

70. 

§  ^ 

71- 

^ 

[72. 

^ 

t73- 

§ 

74- 

§ 

'75- 

ARREST    AM)    HAIL.  §    1 57 

of  fraud,  nor  in  civil  actions  for  torts,  except  in  cases 
of  willful  injury  to  person  or  property;  and  no  person 
shall  be  imprisoned  for  a  militia  fine  in  time  of  peace." 
[Califoj-ma,     Art.  /,  Sec.  i^  Constitution.^ 

Colorado.     Constitution,  Art.  II,  Sec.  12. 

Nevada.      Constitution,  Art.  I,  Sec.  /./. 

Montana.      Constitution,  Art.  Ill,  Sec.  12. 

Oregon.      Constitution,  Art.  I,  Sec.  ig. 

Washington.      Constitution,  Art.  I,  Sec.  ly. 

§  157.  Arrest  for  Fraud. — Provision  is  usually 
made  by  statute,  more  or  less  similar  to  that  in  force 
in  California,  which  provides  for  the  arrest  of  the  de- 
fendant in  a  civil  suit,  in  the  following  cases:  "(i)  In  an 
action  for  the  recovery  of  money  or  damages  on  a 
cause  of  action  arising  upon  contract,  express  or  im- 
plied, when  the  defendant  is  about  to  depart  from  the 
State  with  intent  to  defraud  his  creditors;  (2)  in  an 
action  for  a  fine  or  penalty,  or  for  money  or  property 
embezzled,  or  fraudulently  misapplied,  or  converted  to 
his  own  use,  by  a  public  ofticer,  or  an  officer  of  a  cor- 
poration, or  an  attorney,  factor,  broker,  agent,  or  clerk, 
in  the  course  of  his  employment  as  such,  or  by  any 
other  person  in  a  fiduciary  capacity;  or  for  misconduct 
or  neglect  in  office  or  in  a  professional  employment,  or 
for  a  willful  violation  of  duty;  (3)  in  an  action  to  re- 
cover the  possession  of  personal  property  unjustly  de- 
tained, when  the  property,  or  any  part  thereof,  has  been 
concealed,  removed,  or  disposed  of,  to  prevent  its  be- 
ing found  or  taken  by  the  sheriff;  (4)  when  the  defend- 
ant has  been  guilty  of  a  fraud  in  contracting  the  debt 
or  incurring  the  obligation  for  which  the  action  is 
brought;  or  in  concealing  or  disposing  of  the  property 
for  the  taking,  detention,   or  conversion  of  which  the 


§§    158,    159  ARREST    AND    BAIL. 

action  is  brought;  (5)  when  the  defendant  has  removed 
or  disposed  of  his  property,  or  is  about  to  do  so,  with 
intent  to  defraud  his  creditors."  {California.  Sec. 
41  g  Code  Civil  Procedure.^ 

Colorado.     Sec.  246  Code  Civil  Procedure. 

Idaho.     Sec.  4241  Revised  Statutes,  i88j. 

Montana.     Sec.  121  Code  Civil  Procedure. 

Nevada.     Sees,  jog^,  3542  General  Statutes,  188^. 

Oregon.     Sec.  108  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  j^2  Code  Civil  Procedure. 

Washington.     Sec.  22g  II  HilVs  Codes. 

%  1 58.    The  Order  of  Arrest. — The  order  for  the 

arrest  must  be  obtained  from  the  judge  of  the  court  in 
which  the  action  is  brought,  and  is  made  upon  the  affi- 
davit of  the  plaintiff  or  some  other  person;  and  must 
require  the  sheriff  of  the  county  where  the  defendant 
may  be  found  forthwith  to  arrest  him  and  hold  him  to 
bail  in  a  specified  sum.  {Calif 07'nia.  Sees.  480-48 j 
Code  Civil  Procedure.)     Compare: 

Colorado.     Sec.  246  Code  Civil  Procedure. 

Idaho.     Sees.  4242- j  Revised  Statutes,  i88y. 

Montana.     Sees.  122-j  Code  Civil  Procedure. 

Nevada.     Sees.  jog6-8, 3543  General  Statutes,  188^. 

Oregon.     Sec.  log  I  Hiirs  Codes,  iSg2. 

Utah.     Sees.  353  4  Code  Civil  Procedure. 

Washington.      Sees.  228-232  II  HilVs  Codes. 

\  I  s<;     Temporary  Exemptions  from  Arrest. — 

In  Ciililoniia,  the  constitution  j)rovides  that  "electors 
shall  in  all  cases,  except  treason,  felony,  or  breach  of 
the  jjcace,  be  jjrivileged  from  arrest  on  the  days  of  elec- 
tion, during  their  att(Midance  at  such  election,  going  to 
and    rdiirning  ihcrclrom"    {Art.   //,   Sec.  2),  wwA  that 


ARREST    AND    BAIL.  §   l6o 

"members  of  the  Legislature  shall,  in  all  cases,  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged 
from  arrest,  and  shall  not  be  subject  to  any  civil  pro- 
cess during  the  session  of  the  Legislature,  nor  for  fifteen 
days  next  before  the  commencement  and  after  the  ter- 
mination of  each  session."      (y^r/.  IV,  Sec.  2.) 

"No  person  belonging  to  the  military  forces  is  sub- 
ject to  arrest  on  civil  process  while  going  to,  remaining 
at,  or  returning  from,  any  place  at  which  he  may  be 
required  to  attend  for  military  duty."  [California. 
Sec.  2021  Political  Code.) 

"Every  person  who  has  been,  in  good  faith,  served 
with  a  subpoena  to  attend  as  a  witness  before  a  court, 
judge,  commissioner,  referee,  or  other  person,  in  a  case 
where  the  disobedience  of  the  witness  may  be  punished 
as  a  contempt,  is  exonerated  from  arrest  in  a  civil  action 
while  going  to  the  place  of  attendance,  necessarily  re- 
maining there,  and  returning  therefrom."  [California. 
Sec.  2o6y  Code  Civil  Pi'-ocedzire.) 

More  or  less  similar  provisions  exist  also  in  other 
States.      Compare : 

Arizona.     Sec.  iSjo  Reznsed  Statutes,  i88j. 

Colorado.      Const.  Art.   VII,  Sec.  5/  Aj-t.   V,  Sec.  16. 

Idaho.     Sec.  ^g2  Revised  Statutes,  iSSj. 

Nevada.     Sec.  J42J  General  Statutes,  188^. 

Oregon.     Sees.  6ig,  620  Hill's  Codes,  i8g2. 

Utah.     Sec.  jg6o  Compiled  Laws,  1888. 

§  160.    Remedy,  When  Applicable. — To  entitle 

the  party  to  the  remedy  of  arrest,  it  is  not  necessary 
that  he  should  know  the  commission  of  a  fraud.  It  is 
sufficient,  if  the  circumstances  detailed  would  induce  a 
reasonable  belief  that  a  fraud  was  intended.  [Sotith- 
luorth  vs.  Resing,  j  Cal.  JJ/.) 


§§    l6l,    162  ARREST    AND    BAIL. 

A  fraud  merely  constructive,  not  involving  moral 
guilt,  is  not  ground  of  arrest.  A  partner  is  not  liable 
to  arrest  on  the  ground  of  fraud  committed  by  his  co- 
partners in  contracting  the  partnership  debt  on  which 
the  action  is  brought,  in  the  absence  of  proof  that  he 
knew  of  such  fraud,  or  that  he  in  some  way  ratified  the 
transaction.  But  an  officer  is  not  presumed  to  know 
the  nature  of  the  evidence  relied  upon  by  the  plaintiff 
to  prove  his  case;  it  is  sufficient  for  him  to  know  that 
the  process  is  regular  on  its  face,  to  warrant  him  in 
serving  it.  \\  hatever  may  be  the  defect  in  the  affidavit 
upon  which  the  order  of  arrest  is  issued,  the  order  itself, 
if  regular  on  its  face,  will  protect  the  officer  in  execut- 
ing it.  It  was  so  held  in  Dusy  vs.  Helm,  59  Cal.  189, 
and  section  4187  of  the  Political  Code  was  cited  by  the 
court  as  statutory  authority  for  the  decision. 

§  161.  Void  Order  of  Arrest. — Where  the  com- 
plaint was  not  filed  until  two  days  after  an  order  of  ar- 
rest had  issued  thereon,  it  was  held  in  Ex  parte  Cohen, 
6  Cal.  318,  that  the  order  of  arrest  was  void. 

§  162.  Service  of  Order  of  Arrest.— Upon  re- 
ceipt of  an  order  of  arrest,  with  a  copy  of  the  affidavit, 
ui^on  which  it  is  made,  the  sheriff  must  arrest  the  de- 
fendant and  keep  him  in  custody  until  discharged  by 
law.  On  making  the  arrest,  the  officer  must  deliver  to 
the  defendant  a  copy  of  the  affidavit,  and  also,  if  he 
desire  it,  a  coja'  of  the  order  of  arrest.  [California. 
Sec.  48^  Code  Civil  Procedure. ) 

Nevada.  Sees,  ^/on  /,  75^^-./^  General  Statutes, 
1S85. 

Oregon.     Sec.  locj  /  //ill's  Codes,  iSi)2. 

Wasliington.     Sees.  2j6  7  //  /iilfs  Codes. 


ARREST    AND    BAIL.  §§    1 63,    1 64 

§  163.  Sheriff's  ExpenseS.—  ln  California  it  is 
provided  by  the  Penal  Code  that  "whenever  a  person 
is  committed  upon  process  in  a  civil  action  or  proceed- 
ing, except  when  the  people  of  this  State  are  a  party 
thereto,  the  sheriff  is  not  bound  to  receive  such  person, 
unless  security  is  given  on  the  part  of  the  party  at 
whose  instance  the  process  is  issued,  by  a  deposit  of 
money,  to  meet  the  expenses  for  him  of  necessary  food, 
clothing,  and  bedding,  or  to  detain  such  person  any 
longer  than  these  expenses  are  provided  for.  This 
section  does  not  apply  to  cases  where  a  party  is  com- 
mitted as  a  punishment  for  disobedience  to  the  man- 
dates, process,  writs  or  order  of  court."  {Sec.  1612 
Penal  Code.) 

The  Code  of  Civil  Procedure  also  provides  that 
"whenever  a  person  is  committed  to  jail-  on  an  execution 
issued  on  a  judgment  recovered  in  a  civil  action,  the 
creditor,  his  agent  or  attorney,  must  advance  to  the 
jailer,  on  such  commitment,  sufficient  money  for  the 
support  of  the  prisoner  for  one  week,  and  must  make 
the  like  advance  for  every  successive  week  of  his  im- 
prisonment, and  in  case  of  failure  to  do  so,  the  jailer 
must  forthwith  discharge  such  prisoner  from  custody; 
and  such  discharge  has  the  same  effect  as  if  made  by 
order  of  the  creditor."     {Sec.  11 54  C.  C.  P.) 

Nevada.     Sec.  J844  General  Slahdes,  188^. 

Oregon.     Sec.  128  I  Hilts  Codes,  i8g2. 

Washington.     Sec.  ^j/  //  Hilts  Codes. 

\  164.  Failure  to  Pay  Expenses. — If  a  judg- 
ment is  rendered  against  a  defendant  in  a  civil  action, 
convicting  him  of  fraud,  and  he  is  imprisoned  on  an 
execution  issued  thereon,  the  failure  of  the  plaintiff  to 
make  a  weekly  advance  to  the  jailer,  of  money  suffi- 


§§   165,    1 66  ARREST    AND    BAIL. 

cient  for  the  support  of  the  prisoner,  does  not  per  se 
operate  a  discharge  of  the  defendant.  If  the  prisoner 
is  adequately  supported  by  the  jailer,  and  the  latter  is 
willing  to  trust  the  creditor  for  reimbursement,  the  pur- 
pose of  the  statute  is  satisfied.  i^Ex parte  Laiuson,  50 
Cal.  J06.) 


§  165.    When  Defendant  May  Be  Discharged. 

—The  sheriff  may  discharge  the  defendant  at  any  time 
upon  written  instructions  to  that  effect,  signed  by  the 
plaintiff.  And  the  defendant,  at  any  time  before  execu- 
tion, must  be  discharged  from  tKe  arrest  either  upon 
giving  bail,  as  required  by  the  statute,  or  upon  depos- 
itinor  the  amount  mentioned  in  the  order  of  arrest. 
{California.  Sec.  486  Code  Civil  Procedure.)  A  party 
will  be  discharged  from  arrest  where  the  process,  though 
proper  in  form,  has  been  issued  in  an  improper  case. 
{Soiile  vs.  Hayward,  i  Cal.  J4S-) 

Idaho.     Sec.  4248  Revised  Statutes,  188'/. 

Montana.     Sec.  128  Code  Civil  Pi^ocedure. 

Nevada.     Sees.  3102,  jnj,  3548  Gen.    Stats.  188^. 

Oregon.     Sees,   i/o,   i2g,  131  I  Hills  Codes,   i8g2. 

Utah.     Sec.  3^g  Code  Civil  Procedure. 

Washington.     Sees.  238,  248  II  Hills  Codes,  i8gi. 

\  166.     Surrender  of  Defendant. — At  any  time 

before  judgment,  or  within  ten  days  thereafter,  the 
bail  may  surrender  the  defendant  in  their  exoneration  ; 
or  he  may  surrender  himself  to  the  sheriff  of  the  county 
where  he  was  arrested.  For  the  purpose  of  surren- 
dering the  defendant,  the  bail,  at  any  time  or  place 
before  they  are  finally  charged,  may  themselves  arrest, 
(;r,  by  a  written!  authority  indorsed  on  a  certified  copy 
of  the  undertaking,  may  empower  the  sheriff  to  do  so. 


ARREST    AND    BAIL.  §   1 67 

A  tef lifted  tapy  of  the  undertaking-  may  be  obtained 
from  the  >clerk  of  the  court  in  which  the  action  is 
brought.  {^California.  Sees.  488-g  Code  Civil  Pro- 
eedur£-. ) 

Idaho.     Sees.  ^2^0-1  Revised  Statutes,  iSSy. 

Montana.     Sees.  ijo~i  Code  Civil  Procedure. 

Nevada.     Sees,  jio^-^  General  Statutes,  188^. 

Oregon.     Sees.  112-^  I  Hill's  Codes,  i8g2. 

Utah.     Sees.  361-2  Cock  Civil  Procedtire. 
Washington.     Sees.  2jg,  2^0  II  HilV s  Codes,  i8gi. 

%  167.    Liability  of   Sheriff  and  Sureties. — 

Where  a  defendant  has  been  allowed  to  go  at  large  on 
bail,  and  an  attempt  is  made  to  surrender  him,  either 
by  himself  or  by  his  sureties,  the  officer  should  take 
heed  lest  he  make  himself  liable  to  the  plaintiff  by 
receiving  the  defendant  into  custody  and  thereby  exon- 
erate the  sureties.  In  the  case  of  Allen  vs.  Breslauer, 
8  Cal.  552,  in  an  action  on  a  bail  bond  executed  by  the 
defendants  as  sureties  for  one  Pinover,  the  plaintiff 
obtained  judgment  against  Pinover.  There  was  no 
surrender  of  defendant,  nor  any  execution  issued  within 
ten  days  after  judgment.  After  the  expiration  of  ten 
days,  an  execution  was  issued  against  the  body  of 
Pinover,  and  placed  in  the  hands  of  the  sheriff.  On 
the  same  day  Pinover  called  on  the  sheriff,  and  offered 
to  surrender  himself  in  discharge  of  his  sureties.  But 
the  sheriff,  acting  under  plaintiff's  instructions,  refused 
to  take  him  into  custody.  Afterwards,  defendants 
went  with  Pinover  to  the  sheriff,  for  the  purpose  of 
giving  him  in  custody,  when  he  refused  to  receive  him. 
The  court  below  entered  judgment  for  plaintiff,  but,  on 
appeal,  the  Supreme  Court  reversed  the  judgment, 
filing  an  opinion  which  is  here  given  in  full : — 


§   1 68  ARREST    AND    BAIL. 

"The  question  presented  is  whether,  under  this  state 
of  facts,  defendants  are  liable.  We  think  not.  The 
Legislature,  when  providing  for  the  surrender  of  defend- 
ant within  ten  days  after  judgment,  evidently  contem- 
plated that  the  plaintiff  should  take  such  measures  as 
would  authorize  the  officer  to  hold  defendant  in  custody. 
'The  law  requires  no  man  to  do  a  vain  thing,'  is  a 
familiar  maxim,  and  certainly  it  would  be  in  vain  to 
require  a  party  to  surrender  to  an  officer  having  no 
power  to  detain  him.  The  construction  contended  for 
by  plaintiff  would  enable  a  defendant  to  release  his 
sureties  by  a  surrender  before  execution,  and  then  at 
once  be  released  on  habeas  corpus,  on  the  ground  that 
he  was  illegally  in  custody.  Such  a  result  was  never 
intended  by  the  Legislature,  and  we  are  of  opinion  that 
a  surrender  within  ten  days  after  execution  is  a  suffi- 
cient compliance  with  the  will  of  the  Legislature.  Judg- 
ment reversed." 

§  1 68.    Liable  for  Permitting  an  Escape. — "A 

sheriff  who  suffers  the  escape  of  a  person  arrested  in  a 
civil  action,  without  the  consent  or  connivance  of  the 
party  in  whose  behalf  the  arrest  or  imprisonment  was 
made,  is  liable  as  follows  :■ — 

"1.  When  the  arrest  is  upon  an  order  to  hold  to 
bail  or  upon  a  surrender  in  exoneration  of  bail  before 
judgment,  he  is  liable  to  the  plaintiff  as  bail. 

"2.  When  the  arrest  is  on  an  execution  or  commit- 
m<-nt  tf)  (enforce  the  payment  of  money,  he  is  liable  for 
the  anioiiiu  expressed  in  the  execution  or  commitment. 

"3.  \Vh(!n  tht;  arrest  is  on  an  execution  or  commit- 
ment other  than  to  enforce  the  payment  of  money,  he 
is  liable  for  the  actual  damages  sustained. 

"4.    I'pon  being  sued  for  damages  for  an  escape  or 


ARREST    AND    BAIL.  §§   169-I7I 

rescue,  he  may  introduce  evidence  in  mitigation  and 
exculpation."  {California.  Sec.  gg  Co.  Govt.  Bill, 
Statutes  i8gj,  p.  j'/2;  Sec.  4182  Political  Code.) 

\  1 69.    Liable  for  a  Rescue. — The  sheriff  is  Hable 

for  a  rescue  of  a  person  arrested  in  a  civil  action  equally 
as  for  an  escape.  {California.  Sec.  100  Co.  Govt. 
Bill,  Statutes  i8gj,  p.  jyj;  Sec.  41 8 j  Political  Code.) 

§  1 70.    No  Action  for  Escape  or  Rescue  after 

Recapture. — "An  action  cannot  be  maintained  against 
the  sheriff  for  a  rescue,  or  for  an  escape  of  a  person 
arrested  upon  an  execution  or  commitment,  if,  after  his 
rescue  or  escape  and  before  the  commencement  of  the 
action,  the  prisoner  returns  to  the  jail,  or  is  retaken  by 
the  sheriff."  {California.  Sec.  loi  Co.  Govt.  Bill, 
Statutes  i8gj,  p.  jyj;  Sec.  4184  Political  Code.) 

§   171.    Exception    to  Sureties. — "Within    the 

time  limited  for  that  purpose,  the  sheriff  must  file  the 
order  of  arrest  with  the  clerk,  with  his  return,  together 
with  a  copy  of  the  undertaking.  The  original  under- 
taking he  must  retain,  until  the  sureties  justify,  if  they 
are  required  to  do  so.  The  plaintiff,  within  ten  days 
thereafter,  may  serve  upon  the  sheriff  a  notice  that  he 
does  not  accept  the  bail,  or  he  is  deemed  to  have 
accepted  them,  and  the  sheriff  is  exonerated  from  lia- 
bility. If  no  notice  be  served  within  ten  days,  the 
original  undertaking  must  be  filed  with  the  clerk  of  the 
court."     {California.     Sec.  4g2  Code  Civil  Procedure.) 

Idaho.     Sec.  42^4  Revised  Statutes,  188^. 

Montana.     Sec.  IJ4  Code  Civil  Procedure. 

JSFevada.     Sec.  J108  General  Statutes,  1885. 

Oregon.     Sec.  116  I  Hilts  Codes,  i8g2. 

Utah.     Sec.  j6^  Code  Civil  Procediire. 

Washington.     Sec.  24J  II  Hills  Codes,  i8gi. 


§§    172,    173  ARREST    AND    BAIL. 

§  172.    Justification  of  Sureties. —  "Within  five 

days  after  the  receipt  of  notice,  the  sheriff  or  defendant 
may  give  to  the  plaintiff,  or  his  attorney,  notice  of  the 
justification  of  the  same,  or  other  bail  (specifying  the 
places  of  residence  and  occupations  of  the  latter),  before 
a  judge  of  the  court,  or  county  clerk,  at  a  specified 
time  and  place,  the  time  to  be  not  less  than  five  nor 
more  than  ten  days  thereafter,  except  by  consent  of 
parties.  In  case  other  bail  be  given,  there  must  be  a 
new  undertaking."  If  the  bail  is  found  to  be  sufiicient, 
the  sheriff  is  thereupon  exonerated  from  liability. 
{California.     Sees.  4gj,  4g6  Code  Civil  Proeedure.) 

Idaho.     See.  42^^  Revised  Statutes,  iSSy. 

Montana.     See.  ij^  Code  Civil  P roe e dure. 

JSTevada.     See.  jiog  General  Statutes,  188^. 

Oregon.     See.  11  j  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  j66  Code  Civil  Proeedure. 

Washington.     Sees.  244-^  II  Hills  Codes,  i8gi. 


§   173.    Deposit  of   Bail  Money. — In  case  the 

amount  of  bail  be  reduced,  the  defendant  may  deposit 
such  amount  instead  of  giving  bail.  When  money  is 
deposited,  the  sheriff  must  give  the  defendant  a  certifi- 
cate of  the  deposit  made,  discharge  the  defendant  from 
custody,  immediately  pay  the  deposit  into  court,  and 
take  from  the  clerk  receiving  the  same  two  certificates 
of  such  payment,  the  one  of  which  he  shall  deliver  to 
the  plaintiffs  attorney,  and  the  other  to  the  defendant. 
( California.     Sees.  4gj-8  Code  Civil  Proeedure. ) 

Idaho.     Sees.  42^g~6o  Revised  Statutes,  18S'/. 

Montana.     Sees,  ijg,  140  Code  Civil  Proeedure. 

ATevada.     See.  j/ij  Genei^al  Statutes,  188^. 

Oregon.     Sec.  121  I  I  fill's  Codes,  i8g2. 

Utah.     Sees,  j/o  /  Code  Civil  Procedure. 

Washington.     Sees.  248  g  II  Hill's  Codes,  i8gi. 


ARREST    AND    BAIL.  §§   I  74,    I  75 

§   174.    Sheriff  Liable  for  Escape.— 'If,  after 

being  arrested,  the  defendant  escape  or  is  rescued,  the 
sheriff  is  liable  as  bail,  but  he  may  discharge  himself 
from  such  liability  by  the  giving  bail  at  any  time  before 
judgment."  {California.  Sec.  ^oi  Code  Civil  Pro- 
cedure.)    See  also  Sec.  4182  Political  Code. 


\  175.  Discharge  Final. — Where  a  party  is  once 
arrested  and  discharcred,  he  cannot  be  arrested  aeain 
in  the  same  action.  {McGilvery  vs.  Moorkead,  2  Cal. 
6og.) 


CHAPTER  VII. 


CLAIM    AND    DELIVERY. 

Affidavit  and  Order  to  Sheriff. 

Taking  the  Property. 

Justification  and  Retaking-  Property. 

Replevin  from  Officer  Holding  under  Levy. 

Officer  Responsible  until  Sureties  Justify. 

Notice  of  Justification. 

Care  of  Property  in  Replevin. 

How  Property  Taken  When  Concealed. 

Plaintiff's  Possession  Only  Temporary. 

Property  to  be  Segregated. 

Claim  of  Property  by  Third  Person. 

Sheriff  Liable  for  Taking  Property  of  Stranger. 

Bond  of  Indemnity  to  Sheriff. 

Correction  of  Valuation  of  Property. 

Form  of  Judgment. 

Judgment  to  be  in  the  Alternative. 

When  Judgment  for  Damages  Alone  Proper. 

Particular  Description  of  Property. 

Partial  Delivery  of  Property. 

Property  Lost  through  Act  of  God. 

Attachment  Lien  in  Replevin. 

Attempted  Replevin  from  Sheriff. 

Issuance  and  Service  on  Holidays. 

§  176.    Affidavit  and  Order  to  Sheriff. — The 

duties  of  sh'-rilfs  .ind  constaljlcs  in  tnkiiiL;,  keeping, 
and  delivcrinL;  pr()|)erty  in  replevin  under  the  practice 
in   California,   which   is  suhstanlially  the  same  as  pre- 


§ 

176. 

§ 

177. 

§ 

[78. 

§ 

[78a 

§ 

[79. 

§ 

[So. 

§ 

[81. 

§  1 

[82. 

§  = 

^83. 

§  ^ 

[84. 

§  ^ 

85. 

§  ^ 

86. 

§  ^ 

87. 

§  ^ 

88. 

§  ^ 

89. 

§  I 

90. 

§  ^ 

91. 

§  ^ 

92. 

§  ^ 

93- 

§  J 

94. 

§  ^ 

95- 

§  1 

96. 

H ' 

97- 

CLAIM    AND    DELIVERY.  §    1/6 

vails  throughout  the  Pacific  States,  are  laid  down  in 
sections  609  to  620  of  the  Code  of  Civil  Procedure. 

The  papers  requisite  to  authorize  the  officer  are:  An 
affidavit  made  by  the  plaintiff  or  someone  in  his  behalf 
showing  that  the  plaintifl*  is  the  owner  of  the  property 
claimed  (particularly  describing  it),  or  is  entitled  to  the 
possession  thereof;  that  the  property  is  wrongfully  de- 
tained bv  the  defendant;  the  alleg-ed  cause  of  detention 
thereof,  according  to  his  best  knowledge,  information, 
and  belief;  that  it  has  not  been  taken  for  a  tax,  assess- 
ment, or  fine,  pursuant  to  a  statute,  or  seized  under 
an  execution  or  an  attachment  against  the  property  of 
the  plaintiff,  or  if  so  seized,  that  it  is  by  statute  exempt 
from  such  seizure;  the  actual  value  of  the  property. 
The  affidavit  must  have  an  indorsement  thereon,  in 
writing,  by  the  plaintiff  or  his  attorney,  requiring  the 
officer  to  take  the  property  from  the  defendant.  Be- 
sides the  affidavit  and  notice  referred  to,  there  must  be 
furnished  to  the  officer  a  written  undertaking  executed 
by  two  or  more  sufficient  sureties  to  the  effect  that  they 
are  bound  to  the  defendant  in  double  the  value  of  the 
property,  as  stated  in  the  affidavit,  for  the  return  of  the 
property  to  the  defendant,  if  return  thereof  be  ad- 
judged, and  for  the  payment  to  him  of  such  sum  as 
may,  from  any  cause,  be  recovered  against  the  plaintiff. 
[California.  Sees.  510-2  Code  Civil  Procedure.) 
Compare: 

Arizona.     Sees.  ig2,  ig^.  Revised  Statutes,  iSSj. 

Colorado.     Sees.  80,  81  Code  Civil  P roe e dure. 

Idaho.     Sees.  ^2/2-^  Revised  Statutes,  188/. 

Montana.     Sees.  157-g  Code  Civil  Procedure. 

Nevada.     Sees.  3122,  312^  General  Statutes,  1885. 

Oregon.     Sees.  IJ2-5  I  HiW s  Codes,  i8g2. 

Utah.     Sees.  j8j-5  Code  Civil  Proeedure. 

Washington.     Sees.  255-'/  II  Hills  Codes,  i8gi. 


^   177  CLAIM    AND    DELIVERY. 

§  177.    Taking  the  Property. — Upon  receipt  of 

the  affidavit  and  notice  and  undertaking,  the  officer 
must  indorse  upon  them  the  exact  time  of  receipt,  and 
sign  his  approval  of  the  undertaking,  and  prepare  a 
copy  of  each  for  service.  No  unnecessary  time  should 
then  be  lost  in  taking  the  property.  If  no  property 
can  be  found,  the  officer  runs  no  risk;  while,  on  the 
other  hand,  if  the  property  be  taken,  it  need  not  be 
delivered  to  the  plaintiff  until  the  sureties  on  the  under- 
taking shall  have  justified.  "The  sheriff  must  forth- 
with take  the  property  described  in  the  affidavit,  if  it 
be  in  the  possession  of  the  defendant  or  his  agent,  and 
retain  it  in  his  custody."  {California.  Sec.  ^12  Code 
Civil  Procedure. ) 

If  the  property  is  in  the  possession  of  any  person 
other  than  the  defendant  or  his  agent,  the  officer  will 
not  be  justified  in  taking  it. 

"He  must,  without  delay,  serve  upon  the  defendant 
a  copy  of  the  affidavit,  notice  and  undertaking,  by  de- 
livering the  same  to  him,  personally,  if  he  can  be 
found,  or  to  his  agent  from  whose  possession  the  prop- 
erty is  taken,  or  if  neither  can  be  found,  by  leaving 
them  at  the  usual  place  of  abode  of  either,  with  some 
person  of  suitable  age  and  discretion,  or  if  neither  have 
any  known  jjlace  of  abode,  by  putting  them  in  the 
nearest  j^ost  office,  directed  to  the  defendant."  {Cali- 
fornia.    Sec.  ^12  Code  Civil  Procedure.)     Compare: 

Arizona.     Sec.  ig^  Revised  Stahtes,  iSSj. 

Colorado.     Sec.  Si  Code  Civil  Procedure. 

Idaho.     Sec.  42"/^  Revised  Slalutes,  iSSy. 

M on  I  ana.     Sec.  i  ^c)  Code  Civil  Procedure. 

Nevada.     Sec.  j/24  (icneral  Slalules,  iSS^. 

Oregon.     Sec.  /J5  /  //ill's  Codes,  iSg2. 

Uta/i.     Sec.  jS^  Code  Civil  I  Procedure. 

Wasliington.     Sec.  25-/  / /  //ilTs  Codes,  rS()i. 


CLAIM    AM)    DELIVERY.  §    1 78 

§  178.    Justification  and  Retaking  Property. 

—  Under  the  California  practice,  after  the  sheriff  has 
taken  property,  "the  defendant  may,  within  two  days 
after  the  service  of  a  copy  of  the  affidavit  and  under- 
taking, give  notice  to  the  sheriff  that  he  excepts  to  the 
sufficiency  of  the  sureties.  If  he  fails  to  do  so,  he  is 
deemed  to  have  waived  all  objection  to  them.  When 
the  defendant  excepts,  the  sureties  must  justify  on  no- 
tice in  like  manner  as  upon  bail  on  arrest,  and  the  sher- 
iff is  responsible  for  the  sufficiency  of  the  sureties  until 
the  objection  to  them  is  either  waived  or  until  they  jus- 
tify." If  the  defendant  does  not  except  to  the  sureties 
he  may  retake  the  property  as  follows : — 

"At  any  time  before  the  delivery  of  the  property  to 
the  plaintiff,  the  defendant  may,  if  he  do  not  except  to 
the  sureties  of  the  plaintiff,  require  the  return  thereof, 
upon  giving  to  the  sheriff  a  written  undertaking,  exe- 
cuted by  two  or  more  sufficient  sureties,  to  the  effect 
that  they  are  bound  in  double  the  value  of  the  property, 
as  stated  in  the  affidavit  of  the  plaintiff,  for  the  delivery 
thereof  to  the  plaintiff,  if  such  delivery  be  adjudged, 
and  for  the  payment  to  him  of  such  sum  as  may  for 
any  cause  be  recovered  against  the  defendant.  If  a 
return  of  the  property  be  not  so  required  within  five 
days  after  the  taking  and  service  of  notice  to  the  de- 
fendant, it  must  be  delivered  to  the  plaintiff,"  unless  it 
be  claimed  by  a  third  person.  {California.  Sees. 
513-4  Coele  Civil  Proeedure.^ 

Colorado.     See.  82  Code  Civil  Procedure. 

Idaho.     Sees.  42/5-6  Revised  Statutes,  iSSy. 

Montana.     Sees.  160,  165  Code  Civil  Procedure. 

Nevada.     Sec.  J125  General  Statutes. 

Oregon.     Sec.  ij6  I  Hill's  Codes,  i8g2. 

Utah.     Sees.  jSd-y  Code  Civil  Procedure. 

Washington.     Sec.  258  II  Hill's  Codes,  i8gi. 


§§   I78a-l8o  CLAIM    AND    DELIVERY. 

§  1 78a.    Replevin  from  Officer  Holding  under 

Levy. — When  personal  property,  which  has  been  levied 
upon  by  the  sheriff,  has  been  taken  from  him  in  replevin, 
by  the  party  claiming  it,  he  should  consult  his  own  safety 
and  proceed  no  further  in  the  matter,  but  rest  securely 
on  the  bond  given  by  the  plaintiff  in  the  replevin  suit. 
He  may  give  an  undertaking  and  retake  the  property; 
but  if  he  pursue  this  course,  he  and  his  sureties  will  be 
liable  to  the  claimant  for  its  value.  Having  subse- 
quently  sold  the  property  under  the  execution,  and  paid 
the  proceeds  to  the  plaintiff  in  execution,  he  may  event- 
ually be  compelled  to  pay  its  value  to  the  claimant, 

§  1 79.  Officer  Responsible  until  Sureties  Jus- 
tify.— If  the  defendant  elect  to  retake  the  property,  the 
officer  is  still  to  retain  it  until  the  defendant's  sureties 
justify;  unless,  indeed,  he  is  willing  himself  to  take  the 
risk  of  such  justification.  The  effect  of  a  demand  of 
the  property  by  the  defendant  is  not  to  entitle  the  de- 
fendant to  have  the  property  delivered  to  him,  but  to 
prevent  a  delivery  of  the  property  to  the  plaintiff.  If 
the  defendant  would  have  the  property  himself,  he  must 
proceed  to  have  his  sureties  justify.  The  property  must 
be  retained  by  the  officer  until  such  justification  takes 
place,  unless  the  officer  chooses  to  make  himself  per- 
sonally responsible  that  the  sureties  shall  justify.  {Cal- 
ifornia.    Sec.  ^i^  Code  Civil  Procedure.^ 

\  180.  Notice  of  Justification.  "  Ihe  defendant's 
sureties,  upon  notice  to  the-  plaintiff  ol  not  less  tlicUi 
two  and  not  more  than  five  days,  must  justify  before  a 
judge  or  county  clerk,  in  the  same  manner  as  upon  bail 
on  arrest ;  and  upon  such  justification  the  sheriff  must 
(leli\ei-  the  propert)'  to   ihe  (lefeiulanl.       The  sheriff   is 


1 


CLAIM    AND    DELIVERY.  §§   l8l,    1 82 

responsible  for  the  defenchmt's  sureties  until  they  justify, 
or  until  the  justification  is  completed  or  waived,  and 
may  retain  the  property  until  that  time ;  if  they,  or 
others  in  their  place,  fail  to  justify  at  the  time  and  place 
appointed,  he  must  deliver  the  property  to  the  plaintiff." 
{California.     Sec.  ^i^  Code  Civil  Procedure.) 

Idaho.     Sec.  42j'j  Revised  Statutes,  iSSy. 

Montana.     Sec.  i66  Code  Civil  Pj^ocedure. 

Nevada.     Sec.  312'j  General  Statutes,  1885. 

Oregon.     Sec.  ij8  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  j88  Code  Civil  Procedure. 

Washington.     Sec.  260  II  Hills  Codes,  i8gi. 

\  181.    Care  of  Property  in  Replevin.— \\  hen 

the  property  is  taken  by  the  officer  he  must  exercise  the 
same  care  in  keeping  it  as  in  holding  property  under 
attachment,  and  deliver  it  to  the  party  entitled  thereto, 
upon  receiving  his  fees  for  taking  and  his  necessary  ex- 
penses for  keeping  the  same. 

§  182.    How  Property  Taken  When  Concealed. 

— "If  the  property,  or  any  part  thereof,  be  concealed 
in  a  building  or  inclosure,  the  sheriff  must  publicly  de- 
mand its  delivery;  if  it  be  not  delivered,  he  must  cause 
the  building  or  inclosure  to  be  broken  open,  and  take 
the  property  into  his  possession  ;  and,  if  necessary,  he 
may  call  to  his  aid  the  povv^er  of  his  county."  [Califor- 
nia.    Sec.  ^ly  Code  Civil  Procedure.) 

Colorado.     Sec.  86  Code  Civil  Procedure. 

Idaho.     Sec.  4^'jg  Revised  Stattites,  188"/. 

Montana.     Sec.  168  Code  Civil  Procedure. 

Nevada.     Sec.  ji2g  General  Statutes,  188^. 

Oregon.     Sec.  140  I  Hills  Codes,  i8g2. 

Utah.     Sec.  jgo  Code  Civil  Procedure. 


■§§    183-185  CLAIM    AND    DELIVERY. 

§  183.    Plaintiff's  Possession  Only  Temporary. 

— The  possession  obtained  by  plaintiff  in  replevin  is 
only  temporary.  It  does  not  divest  the  title,  or  dis- 
charge the  lien.      {Hunt  vs.  Robinson,  11  Cal.  262.) 

§  184.    Property  to  be  Segregated. — Replevin 

only  lies  for  the  recovery  of  specific  personal  property. 
Property  which  has  not  been  set  apart  from  the  mass 
in  which  it  is  included  is  not  specific  property,  and 
cannot  be  reached  by  an  action  of  replevin.  Just  what 
will  constitute  a  segregation  must  depend  upon  the 
circumstances  of  each  particular  case. 

\  safe  in  the  possession  of  McC.  belonging  to  W. 
F.  &  Co.,  for  whom,  as  also  for  plaintiff,  he  was  agent, 
contained  six  thousand  dollars  in  coin.  Of  this  sum, 
four  hundred  dollars  belonged  to  W.  F.  &  Co.,  the 
balance  to  plaintiff.  Defendant,  as  sheriff,  under  a 
writ  against  McC,  seized  eighteen  hundred  dollars  of 
the  money  in  the  safe  as  his  property,  and  put  it  in  a 
bag.  Plaintiff  then  claimed  the  money  as  his,  McC. 
being  present  and  not  objecting :  Held,  that  this 
amounted  to  a  segregation  of  the  eighteen  hundred 
dollars  from  the  mass  of  coin  in  the  safe,  so  as  to  sus- 
tain replevin  by  plaintiff.  (Griffith  vs.  Bogardus,  /./ 
Cal.  410.) 

\  185.    Claim  of  Property  by  Third  Person. — 

"  If  the  property  taken  be  claimed  by  any  other  person 
than  the  defendant  or  his  agent,  and  such  person  make 
affidavit  of  his  title  thereto,  or  right  to  the  possession 
thereof,  stating  the  grounds  of  such  title  or  right,  and 
serve  the  same  upon  the  sheriff,  the  sheriff  is  not  bound 
to  ke(!p  the  property  or  d(div{;r  it  to  the  plaintiff,  unless 
the  jjlaintiff,  on  demand  of  him  or  his  agent,  indemnify 


CLAIM    AND    DELIVERY.  §   1 86 

the  sheriff  against  such  claim,  by  an  undertaking,  by 
two  sufficient  sureties ;  and  no  claim  to  such  property 
by  any  other  person  than  the  defendant,  or  his  agents 
is  vaHd  against  the  sheriff  unless  so  made."  {Cali- 
foriiia.     Sec.  ^ig  Code  Civil  Procedure?) 

The  action  of  replevin  cannot  be  maintained,  under 
our  lavv^s,  against  a  sheriff  to  recover  the  possession  of 
personal  property  held  by  him  under  a  writ  of  replevin, 
unless  a  claim  upon  him  for  such  property  has  been 
first  made  as  above  provided.  But  when  a  third  party 
claims  the  property,  the  officer  should  demand  indem- 
nity at  once  from  the  plaintiff,  for  he  can  no  more  take 
the  property  of  a  stranger  under  replevin  than  he  can 
under  attachment  or  execution,  without  rendering  him- 
self liable. 

Colorado.     Sec.  88  Code  Civil  Procedure. 

Idaho.     Sec.  ^281  Revised  Statutes,  188'/. 

Montana.     Sec.  lyo  Code  Civil  Procedure. 

Nevada.     Sec.  j/j/  General  Statutes,  188^. 

Orego7t:     Sec.  142  I  Hill 's  Codes,  i8g2. 

Utah.     Sec.  jg2  Code  Civil  Procedure. 

Washington.     Sec.  264  II  Hill's  Codes,  i8gi. 

§  186.    Sheriff  Liable  for  Taking  Property  of 

Stranger. — Where  an  order  of  court  directed  the 
sheriff  to  seize  certain  specific  property,  and  this  prop- 
erty was  proved  not  to  belong  to  the  defendant  in  the 
suit,  the  sheriff  was  held  liable  to  the  owner.  [Rhodes 
vs.  Patterson,  j  Cal.  46g.)  And  further,  that  the  owner 
of  property  has  his  remedy  and  the  right  of  recovery, 
against  anyone,  whether  sheriff  or  not,  unless  it  be 
held  by  legal  process  against  himself 

In  the  case  of  Bacon  vs.  Robson,  53  Cal.  399,  the 
court  held  that  in  an  action  to  recover  personal  prop- 


§§   187-189  CLAIiM    AND    DELIVERY. 

erty  or  its  value,  where  it  appears  that  the  property 
came  lawfully  into  the  possession  of  the  defendant,  a 
demand  and  refusal  to  deliver  must  be  shown.  See 
also  Sec.  18^. 

%  187.    Bond  of  Indemnity  to  Sheriff.— If  in  a 

bond  to  indemnify  a  sheriff  for  replevying  property 
claimed  by  a  person  other  than  the  defendant  in  the 
writ,  the  obligors  undertake  to  indemnify  him  from 
any  damage  he  may  sustain  by  reason  of  any  costs, 
suits,  judgments  and  executions  that  shall  come  or  be 
brought  aofainst  him,  the  sheriff  cannot  maintain  an 
action  on  the  bond  because  a  judgment  has  been  recov- 
ered against  him,  but  must  first  pay  the  judgment. 
{Lott  vs.  Mitchell,  8  Cal.  2j.) 

§  188.    Correction  of  Valuation  of  Property. — 

"When,  in  an  action  to  recover  the  possession  of  per- 
sonal property,  the  person  making  any  affidavit  did  not 
truly  state  the  value  of  the  property,  and  the  officer 
taking  the  property,  or  the  sureties  on  any  bond  or 
undertaking,  is  sued  for  taking  the  same,  the  ofticer  or 
sureties  may  in  their  answer  set  up  the  true  value  of 
the  property,  and  that  the  person  in  whose  behalf  said 
affidavit  was  made  was  entitled  to  the  possession  of 
the  same  when  said  affidavit  was  made,  or  that  the 
value  in  the  affidavit  stated  was  inserted  by  mistake, 
the  court  shall  disregard  the  value  as  stated  in  the 
affidavit,  and  give  judgment  according  to  the  right  of 
possession  of  said  property  at  the  time  the  affidavit 
was  made."     {California.     Sec.  47 j  C.  C.  P.) 

§  189.     Form  of  Judgment.— Hy  section  667  of 
the  Code  of  Civil    l^ocediin;  of  California,  it  is  pro- 


CLAIM    AND    DELIVERY.  §§   I9O-I92 

vided  that,  "if  the  property  has  been  delivered  to  the 
plaintiff,  and  the  defendant  claims  a  return  thereof, 
judgment  for  the  defendant  may  be  for  a  return  of  the 
property  or  the  value  thereof,  in  case  a  return  cannot 
be  had,  and  damages  for  taking  and  withholding  the 
same;"  and  similar  provisions  exist  in  other  States. 

Arizona.     Sees.  202  /f.  Revised  Statutes,  i88j. 

Colorado.     Sees.  2/^^,  2/61  Mills  Ann.  Stats.,  i8gi. 

Idaho.     See.  44SJ  Revised  Statutes,  i88y. 

Montana.     See.  joj  Code  Civil  Procedure. 

Nevada.     See.  202  Code  Civil  Pi^ocedti7'e. 

Oregon.     See.  262  I  HilTs  Codes,  i8g2. 

Utah.     See.  548  Code  Civil  Procedure. 

Washington.     Sec.  4j8  II  Hilts  Codes,  i8gi. 

§  190.    Judgment  to  be  in  the  Alternative. — 

The  judgment  in  replevin  must  be  in  the  alternative 
form,  i.  €.,  either  for  possession  of  the  property  or  for 
damages,  etc.,  even  though  the  property  has  been 
delivered  to  the  plaintiff.  (Brichman  vs.  Ross,  dy  Cal. 
601.)     See  also  Sec.  igi . 

§  191.    When  Judgment  for  Damages  Alone 

Proper.^ — When  it  appears  on  the  trial  in  replevin  that 
the  property  has  been  destroyed  and  cannot  therefore 
be  returned,  a  judgment  for  damages  alone  will  not  be 
reversed.     [Brozun  vs.  Johnson,  4^  Cal.  yd.) 

§  192.    Particular  Description  of  Property. — 

In  replevin,  where  the  judgment  for  the  plaintiff  de- 
scribes the  property  to  be  restored  as  "buckwheat, 
valued  at  three  hundred  and  sixty-five  dollars  and 
seventy-five  cents,"  the  description  is  insufficient  to 
sustain  the  judgment,  unless  the  judgment  refer  for  a 


§§   193.    ^94  CLAIM    AND    DELIVERY. 

fuller  description  to  the  complaint,  and  there  is  a  more 
definite  description  in  the  complaint,  ( Welch  vs. 
Smith,  4^  Cal.  2jo.) 

I  193.    Partial  Delivery  of  Property. — When 

judgment  in  replevin  was  rendered  for  the  possession 
of  four  hundred  hogs  or  $2,000,  the  value  thereof,  the 
sheriff,  failing  to  find  more  than  ninety-six  hogs,  prop- 
erly levied  on  other  property  to  make  up  the  remainder 
of  the  judgment.      {B/ach  vs.  Black,  7./  Cal.  520.^ 

\  194.    Property  Lost  through  Act  of  God.— 

It  is  no  defense  to  an  action  upon  a  replevin  bond 
that  the  property  was  lost  through  the  act  of  God. 

In  the  case  of  De  Thomas  vs.  Witherby,  61  Cal.  92, 
the  plaintiff  pleaded  that  two  cows  known  as  graded 
stock  died,  thereby  rendering  it  impossible  for  plaintiff 
to  return  said  cattle  to  defendants.  It  was  held  that 
this  was  no  defense.     The  court  said: — 

"In  some  of  the  cases  to  which  we  have  been  re- 
ferred, it  has  been  held  that  the  plaintiff,  who  obtains 
the  possession  of  personal  property  by  replevin,  is  ex- 
cused from  returning  the  same  in  case  it  has  died  since 
the  seizure,  without  any  neglect  or  default  on  the  part 
of  the  party  taking  it.  This  was  the  doctrine  laid  down 
by  the  Supreme  Court  of  New  York,  in  Carpenter  vs. 
Stevens,  i  2  Wend.  589.  .  .  .  To  the  same  effect 
is  the  case  of  Melvin  vs.  Winslow,  10  Me.  397.  But 
an  examination  of  more  recent  cases  and  later  authori- 
ties convinces  us  that  the  above  cases  do  not  lay  down 
the  correct  rule  on  this  subject.  .  .  .  The  weight 
of  authority  is  manifestly  against  excusing  the  party 
who  has  replevined  goods,  from  returning  the  same  or 
responding  in  damages    for  their  value,  because  they 


CLAIM    AND    DELIVERY.  |   195 

have  been  lost  by  the  act  of  God,  and  it  appears  to  us 
that  upon  no  sound  principle  can  he  be  excused.  A 
plaintiff  not  being  the  owner  of  goods  who  takes  them 
out  of  the  possession  of  the  real  owner,  holds  them  in 
his  own  wrong,  and  at  his  own  risk.  He  has  deprived 
the  real  owner  of  the  possession,  and  has  also  deprived 
him  of  the  means  of  disposing  of  the  property  pending 
the  litigation;  and  when  at  the  end  of  perhaps  a  pro- 
tracted litigation  it  is  determined  that  the  plaintiff  in 
the  replevin  suit  had  no  right  to  the  possession  of  the 
goods,  and  judgment  is  rendered  against  him  for  the 
return  of  the  property  or  its  value,  he  cannot,  on  prin- 
ciple or  authority,  be  excused  from  satisfying  such  judg- 
ment under  a  plea  that  the  property  has  been  lost  in 
his  hands,  even  by  the  act  of  God." 

§  195.    Attachment    Lien    in   Replevin.— The 

question  as  to  whether  the  lien  of  attachment  continues 
after  the  replevy  of  goods  is  decided  affirmatively  by 
the  Supreme  Court  in  the  case  of  Hunt  vs.  Robinsoir,, 
J  I  Cal,  262.  This  was  an  action  against  the  sureties, 
on  a  replevin  bond,  and  the  facts  were  as  follows: — 

Treadwell  commenced  suit  against  David  Joaes,  by 
attachment,  which  was  levied  upon  certain,  personal 
property  by  the  plaintiff  Hunt,  as  sheriff  of  Sa^cramento 
County.  Mary  Jones,  wife  of  David  Jones,  claimed 
the  property  as  a  sole  trader,  and  commenced  her  ac- 
tion of  replevin,  and  obtained  possession  of  the  prop- 
erty, upon  delivering  the  statutory  undertaking  executed 
by  defendants,  Robinson  and  Skinker.  The  replevin 
suit  was  decided  on  the  5th  of  February,  1855,  in  favor 
of  Hunt,  and  a  motion  made  for  a  new  trial  by  Mrsv. 
Jones,  which  motion  was  pending  until  March  9,  1855^ 
when  it  was  overruled,     Treadwell  obtained  judgment 


§   196  CLAIM    AND    DELIVERY. 

against  David  Jones,  Nov.  30,  1854,  for  $4,300.  On 
the  1 8th  of  February,  1855,  certain  executions  in  favor 
of  other  creditors  of  David  Jones  being  in  the  hands  of 
the  plaintiff  Hunt,  were  levied  by  him  upon  the  same 
property,  and  the  property  sold  about  the  last  of  Feb- 
ruary. The  sheriff,  being  in  doubt  as  to  which  of  the 
several  creditors  were  entitled  to  the  proceeds  of  the 
sale,  paid  the  money  into  the  Sixth  District  Court,  and 
filed  his  bill  of  interpleader,  making  Treadwell  and  the 
other  creditors  parties.  Upon  the  hearing,  the  District 
Court  decided  that  the  second  class  of  creditors  were 
entitled  to  the  proceeds.  From  this  decision  no  appeal 
was  taken  by  any  party.  On  March  17,  1855,  Hunt 
issued  his  execution  upon  the  judgment  obtained  by 
him  in  the  replevin  suit,  which  was  returned  by  the 
coroner  unsatisfied.  The  sheriff  then  brought  his  suit 
against  the  sureties  in  the  replevin  bond,  and  obtained 
judgment  against  them  for  the  assessed  value  of  the 
property  replevied  and  for  costs,  and  the  defendants 
appealed. 

The  Supreme  Court  decided  that  the  lien  of  Tread- 
well's  attachment  continued  after  the  replevy  of  the 
goods  by  Mary  Jones,  and  that  when  the  same  prop- 
erty came  into  the  hands  of  Hunt,  as  sherift',  the  condi- 
tion of  the  replevin  bond,  to  return  the  property,  was 
fulfilled.  The  projjerty  was  then  liable  to  a  second 
levy,  but  such  second  levy  was  subject  to  the  levy  un- 
der the  prior  attachment. 

^  196.     Attempted    Replevin   from    Sheriff.— 

'I'h(;  dutic^s  of  the  sheriff  in  case  of  a  cross-suit  in  re- 
plevin are  discussed  and  clearly  laid  down  in  the  case 
of  I'hniing  vs.  Wells,  65  Cal.  336.  In  that  case  it  was 
held    by  the  courl,  on   appeal    from  a  judgment  on   the 


CLAIM    AND    DELIVERY.  §   197 

pleadings,  that  the  sheriff  cannot  be  held  responsible  in 
replevin  for  property  of  the  plaintiff,  taken  by  him  on 
a  prior  replevin  suit  and  regularly  delivered  to  the 
plaintiff  in  that  suit,  but  that  the  plaintiff,  as  defendant 
in  the  first  suit,  should  have  given  the  statutory  bond 
for  redelivery  instead  of  instituting  an  independent 
cross-action  in  replevin, 

§  197.    Issuance  and  Service  on  Holidays. — 

In  some  states  express  provision  is  made  by  statute 
for  the  issuance  and  service  of  the  writ  of  replevin  on 
holidays  in  certain  cases. 

Colorado.     Sec.  416  Code  Civil  Procedure. 

Montana.     Sec.  5j/  Code  Civil  Procedure. 


CHAPTER   VIII 


INJUNCTION. 


§  198.  How  Served. 

§  199.  By  Whom  Served. 

§  200.  When  May  Be  Served. 

§  201.  Sheriff  Must  Obey  Writ. 

§  198.    Injunction,  How   Served. — In  the  ab 

sence  of  any  statutory  provision  as  to  the  manner  ot 
service  of  the  writ  of  injunction,  it  is  sufficient  if  serv- 
ice be  made  in  the  manner  prescribed  for  service  of 
summons.  {Golden  Gate  M.  Co.  vs.  Superior  Court, 
6^  Cal.  i8y.)  In  CaHfornia,  when  the  injunction  is 
granted  upon  the  complaint,  a  copy  of  the  complaint 
and  verification  attached  must  be  served  with  the  injunc- 
tion; when  granted  upon  affidavit,  a  copy  of  the  affida- 
vit must  be  served  with  the  injunction.  {Sec.  ^2'/  Code 
Civil  Procedure.^  In  Colorado  and  Oregon  the  stat- 
ute provides  for  service  of  the  injunction  in  the  same 
manner  as  summons.  In  Washington  a  certified  copy 
is  served. 

Colorado.     Sec.  /j./  Civil  Code,  ^his  /SSj,  p.  /-/j. 

Oregon.     Sec.  410  I  /fill's  Codes,  i8g2. 

Washington.      Sec.  jy^  fl  UilF s  Codes,  iSgi. 

%  199.     By  Whom   Served.     Although  statutory 

provision  is  usually  made  that    "the  shcrill    must  serve 


INJUNCTION.  §§   200,    20I 

all  process,"  etc.,  such  a  provision  does  not  impose  upon 
him  exclusively  such  duty;  and  in  the  absence  of  any 
express  statute  designating  the  persons  by  whom  an 
injunction  is  to  be  served,  it  may  be  served  by  any  per- 
son authorized  by  law  to  make  service  of  summons. 
{^Golden  Gate  M.  Co.  vs.  Superior  Court,  65  Cal.  iSj.) 

I  200.  When  May  Be  Served. — Injunctions  and 
writs  of  prohibition  may  be  issued  and  served  on  legal 
holidays  and  non-judicial  days.  {California.  See.  yd 
Code  Civil  Proceditre.) 

Washington.     Laws,  iSgi ,  p.  So. 

§  201.  Sheriff  Must  Obey  Writ.— \\  here  a  sher- 
iff levies  on  and  is  about  to  sell  property  of  an  execu- 
tion debtor,  and  the  defendant  in  execution  obtains 
from  the  court  in  which  the  judgment  was  rendered  an 
injunction  restraining  the  plaintiff  in  the  judgment,  his 
servants,  etc.,  from  proceeding  to  sell  under  such  execu- 
tion, and  this  injunction  is  served  upon  the  sheriff,  who 
in  defiance  of  it  afterwards  makes  the  sale,  he  is  a  naked 
trespasser,  and  liable  in  damages — even  though  he  be 
not  a  party  to  the  injunction  suit.  It  was  so  held  in 
the  case  of  Buffandeau  vs.  Edmondson,  17  Cal.  437, 
and  that  it  was  "unnecessary  to  consider  whether  the 
bill  of  complaint  showed  a  proper  case  for  an  injunction, 
or  whether  the  injunction  was  regularly  granted  or  not. 
It  was  enough  for  the  sheriff  to  know  that  a  court  of 
competent  jurisdiction  had  made  the  order,  and  then  it 
became  his  dutv  to  obev  it." 


CHAPTER  IX. 


ATTACHMENT — GENERALLY. 


§  202.  Nature  and  Object  of  the  Writ. 

§  203.  Issuance  before  Summons. 

§  204.  Regularity  of  Writ. 

§  205.  What  the  Writ  Must  State. 

§  206.  Original  Writ  to  be  Kept  in  Sheriff's  Office. 

§  207.  Instructions  to  Sheriff. 

§  208.  Attachment  Void  for  Want  of  Proper  Undertaking. 

§  209.  Irregularity  in  Issuance  of  Attachment. 

§  210.  Attachment  Where  the  Debt  Is  Not  Due. 

§211.  Contract  Made  Out  of  State. 

§  212.  Right  to  Intervene. 

§  213.  Receipt  and  Levy  on  Holiday. 

§  214.  Attachment — Levy  before  Service  of  Summons. 

§  215.  No  Notice  to  Defendant  Necessary. 

§  216.  What  May  Be  Levied  upon. 

^  217.  When  Property  Not  Attachable. 

§  217a.  Property  in  Custody  of  the  Law. 

§  218.  Attachment  Lien — How  Enforced. 

§  219.  Attachment  Not  Affected  by  New  Summons. 

^5  220.  Conflicting  Attachments. 

§  221.  Priority  of  Levy — Sheriff  and  Deputy. 

i^  222.  Inventory  and  Return  of  the  Writ. 

i^  223.  What  the  Return  .Should  Contain. 

§  224.  Return  When  Not  Amendable. 

^  225.  Return  on  Second  Writ. 

4;  226.  I'referrcd  Labor  Claims. 

^  227.  Service  of  Notice. 

j^  228.  How  Insolvency  Proceedings  Affect  Attachment. 


ATTACHMENT GENERALLY.  §§   202,    203 

§  229.     Insolvency — Duties  of  the  Sheriff. 

§  230.     Void  Levy  upon  Insolvent's  Property. 

§  231.     Dissolved  Attachment  Not  Revived. 

§  202.    Nature  and  Object  of  the  Writ.— An 

attachment  is  a  process  under  which  the  debtor's  prop- 
perty  may  be  seized  and  held  as  security  for  the  satis- 
faction of  any  judgment  that  may  be  recovered  against 
him  in  the  action,  unless  he  gives  security  for  the  pay- 
ment of  the  judgment,  in  the  manner  provided  by  the 
statute.  The  object  of  the  writ  of  attachment  is  to  se- 
cure, in  the  interest  of  the  plaintiff,  sufficient  property 
belonging  to  the  defendant  to  satisfy  the  plaintiff's 
claim.  The  purpose  of  the  lien  is  to  secure  the  pay- 
ment of  the  judgment,  and  this  is  accomplished  by  its 
holding  the  property  until  the  judgment  is  rendered — 
and  in  case  of  real  property,  until  the  judgment  is  or 
may  be  docketed — so  that  the  attached  property  may 
be  taken  and  sold  under  an  execution  to  be  issued  on 
the  judgment.  It  enables  the  sheriff  to  seize  the  prop- 
erty of  the  debtor  and  to  hold  it  until  the  court  can  de- 
termine the  respective  rights  of  the  parties  by  a  judg- 
ment. This  being  the  object  of  the  writ,  it  is  clearly 
the  duty  of  the  officer  to  use  all  due  diligence  in  the 
service  thereof.  Any  delay  on  his  part  may  defeat  this 
object,  and  render  him  liable  to  the  plaintiff  for  what- 
ever loss  may  be  thereby  sustained. 

§  203.      Issuance    before    Summons   Void. — 

When  the  statute  provides  that  the  plaintiff  "at  the  time 
of  issuing  the  summons,  or  any  time  afterward,  may 
have  the  property  of  the  defendant  attached,"  these 
provisions  must  be  stricdy  followed,  and  the  attach- 
ment, if  issued  before  the  summons,  is  a  nullity.  The 
issuance  of  the  summons  afterwards  cannot  cure  that 


§§  204,  205  ATTACHMENT GENERALLY. 

which  was  \'oid  from  the  beginning.      (Low  vs.  Henry, 

It  is  not  presumed  that  a  county  clerk  or  a  justice  of 
the  peace  will  issue  a  writ  of  attachment  before  the 
summons.  Such  a  procedure  could  only  arise  through 
the  grossest  negligence,  and  would  not  be  excusable 
upon  any  plea  of  confusion  caused  by  haste  or  multi- 
plicity of  duties  requiring  immediate  attention  at  the 
time  of  error.  But  if  a  sheriff  receive  information 
that  no  summons  has  been  issued  at  the  time  the  writ 
is  placed  in  his  hands,  he  will  serve  the  writ  at  his 
peril. 

^  204.  Regularity  of  Writ. —  It  is  an  old  princi- 
ple of  law  that,  on  the  reception  of  a  ministerial  writ, 
it  is  the  duty  of  the  officer  to  obey  its  mandate,  if  it  be 
regular  on  its  face  and  issued  by  competent  authority; 
if  there  be  any  irregularity  in  its  issuance,  which  does 
not  so  appear,  such  irregularity  affects  the  parties, 
but  not  the  ministerial  officer.  It  is  incumbent  upon 
the  officer,  therefore,  before  making  service  of  process, 
to  examine  the  same,  and  satisfy  himself  upon  these 
points.      (See  also  Sees.  5^,  jS2,  jsj,  377.) 

\  205.    What  the  Writ  Must  State.-  Under  the 

California  Code  provision  [^See.  540  Code  Civil  Proce- 
dure) "the  writ  must  be  directed  to  the  sheriff  of  any 
county  in  which  property  of  such  defendant  may  be, 
and  must  rctiuirc  him  to  attach  and  safely  keep  all  the 
];r()jjcrty  of  such  (Icfcndant  wilhin  liis  count}'  not  ex- 
(-•mpt  from  (^\(•(■nlinll,  or  so  much  thereof  as  mav  be 
sufficient  to  salisf\-  the  |)laintiff 's  demand,  the  aniount 
of  which  must  be  statcxl  in  conformitv  with  the  com- 
plaint,   uiilfss   ilif  (Iclrndaiit  gi\<'    him    scciirit)'    1)\'  the 


A'l  lACIIMKN  I"      CK.NKRAl.I.N'.  §^   2o6,    20/ 

und(jrt;ikin;4'  ot  ;it  least  two  sufficient  sureties,  in  an 
amount  sufficient  to  satisfy  such  demand,  besides  costs, 
or  in  an  amount  equal  to  the  value  of  the  property 
which  has  been  or  is  about  to  be  attached,  in  which 
case,  to  take  such  undertaking." 

In  other  states  the  requirements  of  the  writ  are  sub- 
stantially the  same.      Compare : 

Arizona.     Sec.  50  Revised  Statutes,  iSSy. 

Colorado.     Sec.  gy  Code  Civil  Procedure. 

JdaJio.     Sec.  4^05  Revised  Statutes,  iSSj. 

Montana.     Sec.  184  Code  Civil  Procedure. 

Nevada.     Sec.  J148  General  Statutes,  188^. 

Oregon.     Sec.  i^y  I  Hills  Codes,  i8g2. 

Utah.     Sec.  41^  Code  Civil  Procedure. 

Washington.     Sec.  2g6  II  Hills  Codes,  i8gi. 

%  206.    Original  Writ  to  be  Kept  in  Sheriff's 

Office. — The  officer  should  make  the  levy  with  a  copy 
of  the  writ,  leaving  the  original  writ,  in  all  cases,  at  his 
office.  He  need  not  give  an  attaching  creditor  notice 
of  the  levy  of  his  attachment,  nor  need  he  serve  a  copy 
of  the  writ  upon  the  defendant.  The  latter  is  entitled 
to  a  copy  if  he  demand  it,  upon  payment  of  the  lawful 
fee  therefor ;  but  if  the  officer  have  no  copy  with  him 
at  ihe  time,  it  may  be  delivered  to  him  thereafter, 

;  207.    Instructions  to  Sheriff. — The  writ  should 

be  accompanied  with  written  instructions  directing  the 
officer  as  to  the  property  to  be  attached  ;  and  when  the 
property  is  real  property, -the  directions  should  state  in 
whose  name  the  property  stands  of  record.  The  best 
form  of  instruction  to  the  sheriff  should  contain  such  a 
description  as  would  give  satisfaction  if  contained  in  a 
deed  ;  for,  if  the  cause  is  prosecuted  to  judgment  and 


§   208  ATTACHMENT GENERALLY. 

sale,  and  a  deed  pass  to  the  purchaser,  the  description 
of  the  land  given  in  the  first  proceeding  will  follow  to 
the  deed.  Although  the  officer  is  bound  to  attach 
property  belonging  to  the  defendant  without  written 
instructions  to  do  so,  if  he  know  of  any  that  is  not  ex- 
empt within  the  county,  yet,  if  such  directions  are  not 
given,  he  may  afterwards  seek  to  excuse  himself  from 
neglect  by  pleading  ignorance  or  uncertainty  of  owner- 
ship. Where  specific  instructions  are  given  in  writing, 
the  party  desiring  the  levy  and  the  officer  at  once  ar- 
rive at  a  mutual  understanding  as  to  the  work  to  be  done. 
In  California  "no  directions  or  authority  by  a  party 
or  his  attorney,  to  a  sheriff,  in  respect  to  the  execution 
of  process  or  return  thereof,  or  to  any  act  or  omission 
thereto,  is  available  to  discharge  or  excuse  the  sheriff 
from  a  liability  for  neglect  or  misconduct,  unless  it  is 
contained  in  a  writing  signed  by  the  attorney  of  the 
party,  or  by  the  party,  if  he  has  no  attorney."  {Sec. 
4185  Political  Code.) 

§  208.  Attachment  Void  for  Want  of  Proper 
Undertaking. — Where  the  undertaking  given  on 
issuing  an  attachment  from  a  justice's  court  was  to  the 
effect  that  plaintifl  would  pay  all  costs,  etc.,  and  the 
damages  the  defendant  might  sustain  by  reason  of  the 
attachment,  "not  exceeding  one  hundred  dollars:"  Held, 
that  the  undertakings  was  bad,  and  rendered  the  attach- 
ment  void  because  not  issued  in  substantial  conformity 
with  the  jjrovisions  of  the  553d  section  of  the  Practice 
Act.  (///.s-A'r  vs.  Can',  J4  Cal.  641.)  In  the  same 
cas('  it  was  h(;l(l  that  where;  the  afhdavit  tailed  to  show 
that  the  jjlaintiff  had  a  cause  of  action  against  defend- 
ant, the  summons  which  was  made  returnable  more 
than  un  days  from  its  date  was  void,  as  was  also  an 
atta(  hiiKiil  issued  in  the  same  case. 


ATTACHMENT GENERALLY.  §§  2O9-2  I  I 

§  209.  Irregularity  in  Issuance  of  Attach- 
ment.— Where  an  attachment  was  issued  on  a  com- 
plaint, which  was  a  printed  form,  with  the  blanks  filled 
up  by  the  clerk,  at  the  request  of  plaintiff,  but  no  name 
signed  to  it  till  next  day  and  after  other  attachments 
on  the  same  property,  when  it  was  signed  by  the  clerk, 
with  the  name  of  the  plaintiff's  attorney:  Held,  that 
the  action  of  the  clerk,  though  not  correct,  was  only  an 
irregularity,  and  the  complaint  was  not  void.  [Dixey 
vs.  Pollock,  8  Cal.  5 JO.) 

If  an  attachment  be  issued  and  levied  in  an  action 
for  a  debt  which  has  been  secured  by  a  mortgage,  the 
case  not  being  one  in  which  the  statute  allows  such 
writ,  the  attachment  should  be  dissolved  on  proper 
motion.     {Kiitsey  vs.  Wallace,  j6  Cal.  462.) 

§  210.     Attachment  Where  the  Debt  Is  Not 

Due. — An  attachment  issued  upon  a  debt  not  due  is 
void  as  against  creditors  whose  rights  are  injuriously 
affected  by  it.  But  where  goods  were  fraudulently  pur- 
chased by  an  insolvent,  the  creditor  may  attach  before 
the  maturity  of  the  debt,  and  other  creditors,  subse- 
quently attaching,  cannot  complain  that  the  suit  was 
prematurely  brought.  The  debt  in  such  case  is  equit- 
ably due,  and,  there  being  no  actual  fraud  against  sub- 
sequent creditors,  they  cannot  be  preferred  in  equity, 
even  if  the  suit  could  have  been  defeated  by  the  debtor 
himself  i^Patrick  vs.  Montader,  ij  Cal.  4JS;  Davis 
vs.  Eppinger,  18  Cal.  jyg.) 

§  211.  Contract  Made  out  of  State. — If  a  con- 
tract is  not  made  in  the  State,  there  must  be  an  express 
stipulation  that  it  shall  be  paid  in  the  State,  in  order  to 
authorize  the  issuance  of  an  attachment  in  an  action 
upon  it. 


§§  2  12-215  ATTACHMENT CrKXKKALIA'. 

§  2  12.  Right  to  Intervene. — Where  a  subse- 
quent attaching  creditor  has  his  attachment  levied  on 
the  property  previously  levied  on  by  a  prior  attaching 
creditor,  he  is  entitled  to  intervene  in  the  action  be- 
tween the  first  attaching  creditor  and  the  defendant,  if 
the  first  attachment  was  fraudulently  procured,  and  the 
common  debtor  has  not  sufficient  property  to  pay  both 
claims.      {Cog/till  vs.  Marks,  2g  Cal.  Oyj.) 

§  213.    Receipt  and  Levy  on  Holiday. — In  the 

absence  of  a  statutory  authority,  a  writ  of  attachment* 
placed  in  the  hands  of  the  sheriff  on  a  holiday,  cannot 
be  officially  received  by  him  on  that  day.  It  can  only 
be  considered  officially  in  his  hands  when  the  holiday 
has  expired.      {Whitney  vs.  Butterjield,   ij   Cal.  jj^.) 

In  some  States  provision  is  made  by  statute  for  the 
issuance  and  levy  of  the  writ  of  attachment  on  holidays, 
in  certain  specified  cases. 

Arizona.     Sec.  6^2  Revised  Statutes,  i88y. 

Colorado.     Sec.  ^16  Code  Civil  Procedure. 

Montana.     Sec.  5j>/  Code  Civil  Procedure. 

Washington.     Laws  of  iSgi,  p.  So. 

>  214.    Attachment — Levy  before  Service  of 

Summons. — Although  the  writ  of  attachment  may  not 
be  issued  before  the  summons,  it  may  be  served  before 
the  summons  is  served.  The  service  of  the  summons 
cuts  no  figure  in  the  attachment.  The  attachment 
cannot,  l)ut  the  summons  may,  be  served  by  a  private 
person. 

?  215.     No  Notice  to  Defendant  Necessary. — 

The  sheriff  to  whom  the  writ  is  direcltxl  and  delivered 
must  execute  the  same  without  delay  if  the  statutory 


ATTACHMENT CxENERALLV.  §§  2  I  6,    llj 

undertaking  be  not  given.  The  officer  is  not  bound  to 
look  up  the  defendant  to  ascertain  if  he  wishes  to  give 
the  undertaking,  nor  woukl  it  be  proper  for  him  to 
delay  executing  the  writ  for  that  purpose, 

§  216.  What  May  Be  Levied  Upon.— The  stat- 
utory provisions  in  regard  to  attachment  are  broad 
enough  to  allow  the  levy  of  the  writ,  and  provide  a 
method  of  levying  the  writ,  upon  any  property  of  the 
defendant,  either  real  or  personal,  or  any  interest 
therein,  not  exempt  from  execution,  or  so  much  thereof 
as  may  be  necessary  to  satisfy  the  demand  sued  on. 
Were  this  not  the  case,  the  writ  would  fall  short  of  its 
plain  object  and  purpose. 

No  property  may  be  taken  in  attachment,  however, 
that  is  not  liable  to  seizure  under  the  execution  when 
issued,  and  the  only  way  in  which  the  levying  of  the 
attachment  upon  the  property  operates  as  security  for 
the  satisfaction  of  the  anticipated  judgment,  is  by  its  ca- 
pacity to  hold  the  property  to  await  the  execution  to  be 
issued.  This  is  necessarily  implied  by  the  various  stat- 
utory provisions  for  the  sale  of  the  attached  property 
in  case  of  judgment  subsequently  recovered. 

Arizona.     Sees.  5<5,  66  Revised  Statutes,  iSSy. 

California.     Sec.  ^^o  Code  Civil  Procedure. 

Colorado.     Sec.  no  Code  Civil  Procedure.^ 

Idaho.     Sec.  4Ji^  Revised  Statutes,  iSSy. 

Montana.     Sec.  ig^  Code  Civil  Procedure. 

Nevada.     Sec.  j/57  General  Statutes,  188^, 

Oregon.     Sec.  i^y  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  42 j  Code  Civil  Procedure. 

Washington.     Sec.  ji2  II  Hills  Codes,  i8gi. 

§  217.    When  Property  Not  Attachable.— An 

attaching  creditor  can  acquire  no  greater  right  in  the 


§§2I7a,    218       ATTACHMENT GENERALLY. 

attached  property  than  the  defendant  had  at  the  time 
of  the  lev\.  If  it  be  so  situated  that  he  cannot  dispose 
of  it  adversely  to  others,  it  cannot  be  attached  for  his 
debt.  (  Ward  vs.  Waterman,  8^  Cal.  488;  Loivenberg 
vs.  Greenebauni,  gg  Cal.  16^.) 

§  217a.    Property  in  Custody  of  the  Law. — In 

the  absence  of  a  statute  to  the  contrary,  money  in  the 
hands  of  the  sheriff,  collected  on  execution,  is  in  the 
custody  of  the  law,  and  is  not  the  subject  of  attachment 
or  garnishment ;  and  money  in  the  hands  of  a  receiver 
is  not  liable  to  seizure  without  an  order  from  the  court 
having  charge  thereof  {Clyiner  vs.  Willis,  j  Cal. 
j6j;  County  of  Yuba  vs.  Adams,  7  Cal.  j^. )  I  n  Wash- 
ington, however,  statutory  provision  is  made  for  gar- 
nishment of  money  in  the  hands  of  sheriffs  and  con- 
stables.    (See  J06  II  Hills  Codes,  i8gi.) 

I  218.    Attachment    Lien — How    Enforced. — 

The  only  mode  provided  by  statute  for  enforcement  of 
the  attachment  lien  upon  property  held  under  the  writ 
is  by  sale  under  execution,  and  payment  of  the  pro- 
ceeds of  the  sale  and  of  all  moneys  derived  from  sale 
of  perishable  property  and  collected  on  garnishment. 
The  proceeds  of  attached  property  sold  under  order  of 
court  by  s'tatutory  authority  forms  no  exception  to  the 
usual  course  of  proceedings  respecting  property  held 
under  attachment,  for  the  money  in  the  officer's  hands, 
though  not  required  to  be  levied  upon  under  execution, 
Ijecause  not  required  to  be  sold,  can  be  applied  to  the 
.satisfaction  of  the  judgment  only  when  the  plaintiff  is 
entitled  to  an  ex(xution,  and  it  is  appropriated  in  the 
same  manner  as  when  made  under  the  execution. 


ATTACHMENT — GENERALLY.  §§   2  I  9,    2  20 

§  2 19.    Attachment  Not  Affected  by  New  Sum- 

mons.^ — 111  Seaver  vs.  Fitzgerald,  23  Cal.  86,  in  a  suit 
commenced  before  a  justice  of  the  peace,  it  was  held 
that  if  the  summons  be  returned  by  the  officer  with  his 
indorsement  thereon  that  no  service   has   been  made 
because  defendant  cannot  be  found,  and  on  the  return 
day  thereof  it  is  further  made  to  appear  by  affidavit 
that  the  defendant  conceals  himself  to  avoid  service  of 
process,  the  suit  does  not  thereby  abate,  but  the  mag- 
istrate may  continue  the   case,  issue  a    new  summons, 
and  make  an  order  for  its  service  by  publication.      In 
such  case,  when   an  attachment  is  regularly  issued  by 
the  justice  at  the  time  of  the  issuance  of  the  first  sum- 
mons, the  attachment  is  not  vitiated  by  the  failure  to 
serve  the  first  summons  and  the  issuance  of  a  second 
one,  nor  is  the  validity  of  the  attachment  in  any  way 
affected  by  the  proceedings.     The  plaintiff  contended 
that  the  second  summons  was  the  summons  in  the  case, 
because  that  was  the  summons  served  by  publication, 
and  as  the  writ  of  attachment  was  issued  before  this 
second    summons,   it  was    therefore  void.      The  court 
held  that  this  point  was  clearly  untenable,  that  a  sum- 
mons was  duly  issued    before  or  at  the    time  of   the 
issuing    of   the    attachment,   and    the    attachment  was 
therefore    valid    when    it    issued.     The    fact    that   the 
defendant  absented  himself  so  that  the  summons  could 
not  be  served  on  him  before  the  return  day  thereof, 
and  that  it  was  returned  not  served,  could  not  have  the 
effect  of  vitiating  the  attachment. 

§  220.  Conflicting  Attachments. — The  applica- 
tion of  an  attaching  creditor,  to  compel  the  sheriff  to 
pay  over  the  proceeds  of  goods  attached,  there  being 
conflictinor  claims  between  several  attaching  creditors, 


§  2  20  ATTACHMENT GENERALLY. 

may  be  made  by  motion.  If  notice  of  the  motion  is 
not  given  by  the  party  moving  to  the  other  attaching 
creditors,  it  is  the  duty  of  the  sheriff  to  do  so,  if  he 
wishes  the  decision  to  bind  them.  [Dixey  vs.  Pollock, 
8  Cal.  570.) 

A  sheriff  who  receives  an  attachment,  regular  upon 
its  face,  cannot  pay  over  the  money  obtained  by  him 
from  the  sale  of  the  property,  levied  on  by  virtue  of 
the  writ,  to  a  junior  attaching  creditor,  because  the 
complaint  in  the  action  on  which  the  first  attachment 
was  issued  did  not  set  forth  a  cause  of  action  upon 
which  an  attachment  could  issue.  When  a  sheriff 
receives  money  on  execution  sale  of  property  levied 
on  by  vnrtue  of  attachments,  it  is  his  duty  to  apply  the 
money  in  the  order  of  the  attachments.  The  sheriff" 
has  no  right  to  go  back  of  the  process  and  raise  the 
question  as  to  the  validity  of  the  attachments.  (J/<f- 
Comb  vs.  Reed,  28  Cal.  281.) 

If  two  attachments,  issued  from  different  courts,  are 
placed  in  the  sheriffs  hands,  and  one  is  issued  and 
levied  before  the  other,  and  the  sheriff  levies  on  the 
same  personal  property  by  virtue  of  both,  although  the 
court  from  which  the  second  attachment  issued  may 
make  an  order  for  the  sale  of  the  property,  it  has  no 
j>ower  to  dispose  of  the  fund  arising  from  the  sale, 
other  than  the  surplus  remaining  after  the  claim  ot  the 
first  attaching  creditor  is  satisfied.  In  such  case,  if  the 
sheriff  obeys,  and  the  money  is  paid  to  the  second 
attaching  creditor,  the  sheriff  is  liable  to  the  first  attach- 
ing cn-ditor  for  the  amouiil  for  which  he  recovers  judg- 
mc-nt,  or  for  the  amount  of  the  proceeds,  if  less  than 
the  amount  of  the  judgmctu.  {IVemier  vs.  JVood,  4g 
Cal.  2()y.) 

Where  a  first  attachment  aL-ainst  an  iusoK'cnt    is  set 


ATTACHMKXT HKXKKAI.LV.  ^^  22  1,    222 

aside  as  fraudulent,  in  a  suit  brought  by  a  subsequent 
attachinof  creditor,  to  which  various  other  attaching- 
crecHtors,  prior  and  subsequent,  are  parties,  the  plaintiff 
in  the  suit  cannot  claim  priority  over  the  attachments 
preceding  his,  on  the  ground  that  by  his  superior  dili- 
gence the  fraud  has  been  discovered.  Such  a  fund  is 
not  strictly  an  equitable  asset.  The  prior  attachments 
became  liens,  in  the  nature  of  a  legal  estate  vested  in 
the  sheriff  for  the  benefit  of  the  creditors.  Plaintiff's 
costs,  disbursements,  and  counsel  fees,  however,  should 
first  be  deducted  from  the  fund  before  distribution. 
{Patrick  vs.  Montader,  ij  Cal.  43 S-) 

§  221.    Priority  of  Levy— Sheriff  and  Deputy. 

— Where  one  writ  of  attachment  was  placed  in  the 
sheriffs  hands  on  Sunday,  and  another  against  the 
same  defendant  was  placed  in  the  hands  of  a  deputy  at 
a  quarter  past  twelve  on  Monday  morning,  the  sherift" 
not  knowing  the  fact,  and  the  first  levy  was  made  under 
the  last  writ  at  one  o'clock  Monday  morning,  the  sherifi' 
was  not  guilty  of  negligence  in  executing  the  first  writ 
— no  special  circumstances  being  shown.  (  Whitney 
vs.  Buttcrfield,  ij  Cal.  Jj6.) 

§  222.    Inventory  and  Return  of  the  Writ. — 

In  California,  Colorado,  Idaho,  Montana,  Nevada, 
Utah  and  Washington,  the  statute  requires  the  sheriff 
to  make  a  "full  inventory"  of  the  property  attached 
and  return  the  same  with  the  writ.  In  Arizona  the 
return  must  describe  the  property  attached  with  suf- 
ficient certainty  to  identify  it,  and  in  Oregon  the  return 
of  the  writ  must  have  the  sheriff's  proceedings  indorsed 
thereon,  which  last  necessarily  demands  a  list  of  the 
property  levied  upon. 


^22:;  ATTACHMENT GENERALLY. 


v) 


In  California,  Idaho,  Montana,  Nevada,  Utah  and 
Washington  the  sheriff  must  return  the  writ  of  attach- 
ment with  the  summons,  if  issued  at  the  same  time, 
otherwise,  within  twenty  days  after  its  receipt.  In 
Colorado  and  Oregon  the  writ  is  to  be  returned  within 
twenty  days  in  any  case,  and  in  Oregon  it  is  to  be 
returned  when  it  "shall  be  fully  executed  or  discharged." 

In  computing  the  time,  the  day  of  its  receipt  is  ex- 
cluded and  the  last  day  included.  The  writ  of  attach- 
ment must  not  be  returned  until  the  last  day,  except 
by  written  instruction  from  the  plaintiff  or  his  attorney, 
or  unless  it  has  been  fully  satisfied.  After  having 
made  a  levy  under  the  writ,  the  plaintiff  may  find  other 
property  which  he  desires  to  be  attached,  and  if  the 
writ  has  been  returned,  he  may  lose  the  opportunity  to 
secure  such  other  property,  and  the  sheriff  be  held 
accountable  therefor. 

Arizona.     Sees.  64,  6^  Revised  Statutes,  188 j. 

California.     Sees.  5-/<5,  ^^g  Code  Civil  Procedure. 

Colorado.     See.  114  Code  Civil  Procedure. 

Idaho.     Sees.  4311,  4324  Code  Civil  Procedure. 

Montana.     Sees,  igi,  203  Code  Civil  Procedure. 

Nevada.     Sees.  3154,  3166  General  Statutes,  1883. 

Oregon.     Sec.  162  I  Hill' s  Codes,  i8g2. 

[Hah.     Sees.  41  g,  432  Code  Civil  Procedure. 

Washington.     Sees.  ^08,  321  Code  Civil  Procedure. 

%  223.     What  the  Return   Should  Contain.— 

The.'  sheriff's  return  upon  process  is  a  report  of  his 
jjroceedings  thereunder.  Where  the  language  of  the 
law,  which  r(;quir(;s  him  to  do  certain  things  in  the 
service  of  process,  is  mandatory,  he  should  make  the 
wording  of  his  return  conform  strictly  to  the  require- 
ments  therein   express(Ml,    if  he   has   faithiully  followed 


ATTACHMENT GENERALLY.  §§  224,    225 

those  requirements  in  making  the  service.  It  is  the 
duty  of  the  sheriff,  when  returning  an  attachment  of 
real  property,  to  indorse  thereon  what  acts  he  per- 
formed in  serving  the  writ,  and  it  will  be  presumed 
thai  he  states  all  that  he  did  towards  making  the  service. 
Care  should  be  taken  to  include  the  inventory  of  at- 
tached property,  mentioned  in  the  preceding  section. 
If  he  serve  a  garnishment  upon  A.,  who  fails,  neglects, 
and  refuses  to  answer,  and,  subsequently,  by  direction 
of  the  plaintiff,  he  serve  another  garnishment  upon  A., 
who  answers  thereto  that  he  has,  or  has  not,  money  or 
goods  belonging  to  the  defendant,  the  officer  must 
make  return  of  both  services.  He  must  not  take  for 
granted  that  because  no  answer  was  made  by  A.  to 
the  first  garnishment,  it  was  a  useless  service,  and  that 
therefore  no  return  need  be  made  of  that  service,  for 
it  mav  be  necessary  for  the  plaintiff  to  show  in  subse- 
quent proceedings  that  a  copy  of  the  writ  and  notice 
of  garnishment  had  been  served  upon  A.  at  the  time 
the  first  service  was  made. 

I  224.     Return— When    Not    Amendable.— A 

sheriff  has  no  ricrht,  after  makino-  a  return,  to  amend  it 
so  as  to  affect  rights  which  have  already  vested.  (JVew- 
hall  vs.  Provost,  6  Cal.  8^.)  The  return  on  attach- 
ment cannot  be  amended  so  as  to  postpone  the  rights 
of  creditors  attaching  subsequently,  but  before  the  cor- 
rection. ( Webster  vs.  Hazvorth,  8  Cal.  21 ;  JSPeivhall 
vs.  Provost,  6  Cat.  8^.) 

§  2  2'^.  Return  on  Second  Writ. — When  an  offi- 
cer, by  virtue  of  a  second  attachment,  levies  on  prop- 
erty already  in  his  possession  by  \'irtue  oi  a  former 
attachment,  it  is  only  necessary  for  him   to  return  that 


§  2  26  ATTACHMENT uEXERALL.V. 

he  has  attached  the  interest  of  the  defendant  in  the 
property  then  in  his  possession.  [O Connor  vs.  Blake, 
2g  Cal.  jij.)  While  such  a  return  may  be  only  neces- 
sary, it  would  be  proper  and  more  satisfactory  to  par- 
ties interested  who  desire  information  reorardinor  the 
officer's  proceedings,  to  state  in  the  return  that  the 
property  was  attached  subject  to  levy  under  certain 
prior  writs.  The  plaintiff  should  be  enabled  to  ascer- 
tain, from  the  return  on  file  in  the  clerk's  office,  what 
advantages  he  has  orained  under  the  writ;  and  where  a 
return  only  states  a  portion  of  the  officer's  proceedings, 
it  is  liable  to  mislead. 

§  226.    Preferred  Labor  Claims.— "In  cases  of 

executions,  attachments  and  writs  of  a  similar  nature, 
issued  against  any  person,  except  for  claims  for  labor 
done,  any  miners,  mechanics,  salesmen,  servants,  clerks, 
and  laborers,  who  have  claims  against  the  defendant  for 
labor  done,  may  give  notice  of  their  claims,  and  the 
amount  thereof,  sworn  to  by  the  person  making  the 
claim,  to  the  creditor  and  the  officer  executing  either  of 
such  writs,  at  any  time  before  the  actual  sale  of  prop- 
erty levied  on  ;  and,  unless  such  claim  is  disputed  bv 
the  debtor  or  a  creditor,  such  officer  must  pay  to  such 
person,  out  of  the  proceeds  of  the  sale,  the  amount 
each  is  entitled  to  receive  for  services  rendered 
within  the  sixty  days  next  preceding  the  levy  of  the 
writ,  not  exceeding  $100.  If  any  or  all  of  the  claims 
so  presented,  and  claiming  preference  under  this  section, 
are  disputed  by  either  the  debtor  or  a  creditor,  the  per- 
son presenting  the  same  must  commence  an  action 
within  ten  days  for  the  recovery  thereof,  and  must  pros- 
ecute his  action  with  due  diligence,  or  be  forever  barred 
fr(Hn  any  claim  of  priority  of  payment  thereof;  and  the 


ATTACHMENT CKNKRAI.LV.  §   2  26 

officer  shall  retain  possession  of  so  much  of  the  pro- 
ceeds of  the  sale  as  may  be  necessary  to  satisfy  such 
claim  until  the  determination  of  such  action  ;  and  in 
case  judgment  be  had  for  the  claim,  or  any  part  thereof, 
carrying  costs,  the  costs  taxable  therein  shall  likewise 
be  a  preferred  claim  with  the  same  rank  as  the  original 
claim."     {California.     Sec.  1206  Code  Civil  Procedure.) 

"The  debtor  or  creditor  intending  to  dispute  a  claim 
presented  under  the  provisions  of  the  last  section  (Sec. 
1 206)  shall,  within  ten  days  after  receiving  notice  of  such 
claim,  serve  upon  the  claimant  and  the  officer  executing 
the  writ,  a  statement  in  writino-,  verified  bv  the  oath  of 
the  debtor,  or  the  person  disputing  such  claim,  setting 
forth  that  no  part  of  said  claim,  or  not  exceeding  a  sum 
specified,  is  justly  due  from  the  debtor  to  the  claimant 
for  services  rendered  within  the  sixty  days  next  preceding 
the  levy  of  the  writ.  If  the  claimant  bring  suit  on  a 
claim  which  is  disputed  in  part  only,  and  fail  to  recover 
a  sum  exceeding  that  which  was  admitted  to  be  due,  he 
shall  not  recover  costs,  but  costs  shall  be  adjudged 
against  him."  {California.  Sec.  i2oy  Code  Civil  Pro- 
cedure. ) 

The  constitutionality  of  Section  1 206  of  the  Code  of 
Civil  Procedure,  which  provides  for  giving  preference 
to  labor  claims  out  of  moneys  received  on  execution,  is 
affirmed  by  the  Supreme  Court,  in  the  case  of  Mohle 
vs.  Tschirch,  63  Cal,  381. 

Similar  provision  for  the  securing  of  preferred  labor 
claims  exists  in  some  of  the  other  states,  reference  to 
them  being-  here  oriven. 

Colorado.     Acts  1885,  P-  4^'  ^^^-  ^5- 

Montana.     Sec.  2052  Compiled  Statutes,  188^. 

Nevada.     Sec.  j8ji  General  Statutes,  188 j. 

Oregon.     II  Hills  Codes,  p.  igo2. 


§§  2  2/,    2  28  ATTACHMENT GENERALLY. 

§  227.  Service  of  Notice. — It  has  been  held  that 
the  service  of  the  notice  required  by  Section  1206  of 
the  California  Code  of  Civil  Procedure,  ante,  may  be 
made  upon  the  attorney  for  the  attaching  creditor. 
{Carter  vs.  Green  Mountain  G.  M.  Co.,  8j  Cal.  222.) 

§  228.    How   Insolvency   Proceedings   Affect 

Attachment. — By  the  California  Insolvent  Act  of 
1880,  upon  the  filing  of  the  petition  and  of  the  order 
of  adjudication  of  insolvency,  "all  proceedings  against 
the  insolvent  shall  be  stayed"  (Section  6)  ;  the  sheriff  is 
appointed  receiver,  to  take  charge  of  all  the  property 
of  the  debtor  not  exempt,  until  an  assignee  shall  be  ap- 
pointed (Section  6)  ;  and  upon  the  clerk's  assignment  of 
the  insolvent  property  to  the  chosen  assignee,  all  at- 
tachments made  within  one  month  next  preceding  the 
commencement  of  the  insolvency  proceedings  shall  be 
dissolved  (Section  i  7). 

The  insolvency  laws  of  Idaho,  Nevada,  and  Wash- 
ington also  provide  for  a  stay  of  all  proceedings  against 
the  insolvent  debtor,  and  for  the  taking  possession,  by 
the  receiver  or  assignee,  of  all  property  not  exempt 
from  execution.  The  Oregon  statute  regulating  assign- 
ments for  the  benefit  of  creditors  provides  that  the 
makin<j  of  the  assi<^nment  dissolves  all  attachments  in 
cases  where  judgment  has  not  yet  been  taken.  In  Ari- 
zona and  Colorado  no  provision  is  made  for  the  relief 
of  an  insolvent  debtor  without  the  consent  of  his 
creditors,  tht-re  being  statutes,  however,  providing  for 
assignments  for  the  benefit  of  creditors.  In  each  jxir- 
ticular  state,  th(,'  effect  of  insolvency  proceedings  upon 
a  subsisting  atlarhnimt  is  to  Ih-'  determined  bv  the 
statute  in  force. 

ylrizona.     Sees.  22    ?y  A'n'/sct/  Statutes,  /SSy. 


ATTACIIMKNT GKXEKALI.V.  §§   229,    23O 

California.     Sees.   6,    ij  Insolvent  Act  of  1880,  as 
aine^ided. 

Colorado.     Acts  1885,  pp.  43-48. 
Idaho.     Sees.  ^880,  5884  Revised  Statutes,  188'/. 
Nevada.     Sees.  38^3-4  General  Statutes,  188^. 
Oregon.     Sees.  3173-8'/  II  Hills  Codes,  i8g2. 
Washington.     Sees.  2/62,  2/64  I  Hill s  Codes,  i8gi. 

\  229.    Insolvency— Duties  of  the  Sheriff. — 

Where  the  statute  provides  for  a  stay  of  all  proceedings 
against  the  insolvent,  no  attachment  can  be  levied  after 
the  filing  of  the  petition  and  schedule  in  voluntary  in- 
solvency, and  whatever  property  there  may  have  been 
attached,  passes  from  the  hands  of  the  officer  to  the 
person  designated  by  the  court  as  its  custodian,  or  to 
the  assignee.  The  officer  should  not  abandon  any 
property  he  may  have  attached  belonging  to  the  insol- 
vent, for  he  would  be  liable  for  its  loss  thereby;  but  must 
keep  it  until  the  lawfully  designated  custodian  appears 
to  receive  it.  The  Hen  of  a  levy  under  a  writ  of  attach- 
ment is  not  dissolved  by  insolvency  proceedings,  except 
when  provided  by  statute,  as  in  California  and  Oregon; 
but  proceedings  under  the  writ  are  stayed.  By  statute 
in  the  former  State,  a  creditor  may,  by  consent  of  the 
insolvency  court,  prosecute  his  suit  to  a  judgment  for 
the  purpose  of  ascertaining  the  amount  due  him,  when 
the  same  is  in  dispute.  [California.  Insolvency  Act 
of  1880,  Sec.  4^.) 

I  230.    Void  Levy  upon  Insolvent's  Property. 

- — After  a  petition  and  schedule  in  insolvency  are  filed, 
the  control  and  dominion  of  the  insolvent's  property 
are  transferred  to  the  court,  and  a  creditor  cannot,  after 
the  order  staying  proceedings,  seize  the  property.      The 


^  231  ATTACHMENT^ — GENERALLY. 

order  operates  by  its  own  force  from  its  date,  and  no 
notice  need  be  given  of  it  to  a  sheriff  with  a  w  rit  against 
the  insolvent.  For  example :  An  attachment  issues 
against  H.,  and  the  sheriff  proceeds  with  the  writ  to 
his  store,  which  is  locked  and  fastened,  front  and  rear, 
by  iron  shutters.  The  sheriff,  with  his  deputy,  stands 
at  the  door,  guarding  all  entrance.  H.  now  files  his 
petition  and  schedule  in  insolvency,  and  the  usual  order 
of  stay  of  proceedings  is  made.  H.  returns  to  the 
store  and  advises  the  sheriff  of  these  things.  The 
sheriff  threatens  to  break  open  the  store,  when  H. 
gives  him  the  key,  and  he  enters  and  levies.  In  such 
case  it  was  held  that  the  sheriff  had  no  right  to  levy, 
and  that  the  property  vested  in  the  assignee  of  the 
insoKent,  subsequently  appointed,  by  relation,  from  the 
filing  of  the  petition  and  schedule.  (Tafts  vs.  Man- 
love.  14  Cal.  4J.) 

).  231.     Dissolved  Attachment  Not  Revived. — 

An  attachment  levied  within  one  month  prior  to  the 
insolvency  proceedings  and  dissolved  by  them  {Cal. 
Insolvency  Act,  Sec.  4^)  is  not  revived  by  a  subse- 
quent dismissal  of  the  insolvency  proceedings.  ( IVil- 
hoit  vs.  Cnnninghain,  Sy  Cal.  453.) 


s 

232. 

s 

233- 

§ 

234- 

§ 

235- 

§ 

236. 

§ 

237- 

§ 

238. 

§ 

239- 

^ 

240. 

^ 

241. 

s 

242. 

s 

243- 

§ 

244. 

§ 

245' 

§ 

246, 

^ 

247. 

§ 

248. 

§ 

249. 

§ 

250. 

^ 

251. 

^ 

252. 

§ 

253. 

^ 

254- 

§ 

255- 

§ 

256. 

^ 

257- 

^ 

258. 

§ 

259- 

CHAPTER  X. 

ATTACHMENT  OF  PERSONAL  PROPERTY. 

California. 

Arizona. 

Colorado. 

Idaho,  Montana,  Utah  and  Nevada. 

Oregon. 

Washington. 

Attachment  of  Vessels. 

Statutory  Procedure  Exclusive. 

Building  as  Personal  Property. 

Necessity  of  Prompt  Action. 

Liability  for  Delay. 

What  Acts  of  Officer  Are  Justified  under  Writ. 

What  Acts  Necessary  in  Making  Levy. 

What  Constitutes  Taking  into  Custody. 

Property  Must  Be  within  View  of  the  Officer. 

Void  Levy — Instances. 

Property  Must  Be  Kept  in  Custody. 

Sheriff  Responsible  for  Property  Levied  Upon. 

Removal  of  Attached  Property. 

Excessive  Levy. 

Authority  to  Conduct  Business  under  Attachment. 

Allowing  Defendant  to  Conduct  Business. 

Officer's  Lien  Dependent  on  Possession. 

Attachment  of  Partnership  Property. 

Sheriff's  Keeper — Suggestions. 

Expense  of  Keeping  Property. 

Consideration  to  be  Shown  to  Defendant. 

What  May  Be  Levied  Upon. 


ATTACHMENT  OF  PERSONAL  I'ROPERTV. 

§  260.  Certain  Building  Materials  Not  Attachable. 

§  261.  Property  in  Foreign  Receiver's  Hands. 

§  262.  Inventory  of  Property — Request  to  Garnishee. 

§  263.  Garnishment — Nature  of. 

§  264.  Garnishment,  Generally,  in  California. 

§  265.  Penalty  for  Failure  to  Disclose. 

§  266.  Examination  of  Defendant  Limited. 

§  267.  Liability  of  Garnishee. 

§  267a.  Property  in  Custody  of  the  Law. 

§  268.  Collection  from  Garnishee. 

§  269.  Garnishment  in  Other  States. 

§  270.  Distinction  between  Debts  and  Credits. 

§271.  Garnishment  of  Corporations. 

§  272.  Garnishment — Offset  Allowable. 

§  273.  Garnishment  of  Estate  Funds. 

§  274.  Stocks  Attachable  by  Garnishment. 

§  275.  Mortgage  Attachable  by  Garnishment. 

§  276.  Stocks  Not  Transferred  on  Books. 

§  277.  When  Garnishment  Is  Not  a  Lien. 

§  278.  Attachable  Interest  of  Lessee  in  Leased  Property 

^5  279.  Claim  by  Third  Party. 

§  280.  Right  of  Officer  to  Indemnity. 

§  281.  Claim  by  Third  Party — Statutory  Provisions. 

^  282.  Sheriff's  Jury — Indemnity. 

§  283.  Time  to  Procure  Bond. 

§  284.  Time  a  Bond  Takes  Effect. 

§  285.  Waiver  of  Sheriff's  Jury. 

§  286.  Sheriff 's  Jury  No  Protection. 

{5  287.  Double  Indemnity. 

55  288.  Replevin  from  Sheriff. 

i^  289.  Estoppel  of  Owner  of  Attached  Property. 

>^  290.  Release  of  Attachment. 

^5  291.  Release  by  Judgment  for  Defendant. 

)^  292.  Release  on  Undertaking  Given. 

i^  293.  Form  of  Undertaking. 

45  294.  Sureties  on  Bond  for  Release. 

i^  295.  Money  Deposited  to  Release  Property. 

§  296.  Release  upon  Plaintiff's  Order. 

i^  297.  Proceedings  on  Release. 

^  298.  Death  of  Defendant  Destroys  Attachment  Lien. 


ATTACHMENT    Ol"    PERSONAL    I'ROl'ERTV.  v   -3- 

§  299.     Release  by  Appeal. 

§  300.     Liability  for  Failure  to  Release. 

§  301.     Expense  of  Keeping  Property  Levied  Upon. 

§  302.     Sheriffs  Fees  to  be  Paid. 

§  303.     Change  of  Sherift's  Fees  on  Release. 

§  304.     Attachment  of  Mortgaged  Personal  Property. 

§  305.     Mortgage  of  Personal  Property-. 

§  306.     Object  and  Effect. 

§  307.     Requisites  for  Validity. 

§  308.     Payment  of  Mortgage  before  Levy. 

§  309.     Liability  for  Wrongful  Levy. 

§  310.     Creditor  to  Advance  Payments. 

§  311.     Attachment  of  Growing  Crops. 

§  312.     Growing  Crops  Mortgaged — Continuance  of  Lier.. 

§  313.     Farming  on  Shares — Attachable  Interest. 

§  314.     Attachment  of  Crop  after  Severance. 

§  315.     Attachment  of  Pledged  Property. 

§  316.     Pledge  of  Goods — Rights  of  Pledgee. 

§  317.     Prior  Liens  Must  Be  Satisfied. 

§  318.     Liens  upon  Personal  Property — California. 

(a)  For  Repairs. 

(b)  For  Storage,  etc. 

(c)  For  Purchase  Price. 
(</)  Factor's  Lien. 

(e)  Banker's  Lien. 

{/)  Shipmaster's  Lien. 

(^)  Seaman's  Lien. 

ill)  Officer's  Lien. 
§  319.     Liens  in  Other  States. 
§  320.     Lien  for  Cutting  Timber,  etc. 
§  321.     Waiver  of  Lien. 
§  322.     Sale  before  Judgment — Perishable  Property. 

§  232.    Attachment  of   Personal    Property — 

California. — The  manner  of  making  levy  of  the  writ 
upon  personal  property  is  prescribed  in  Subdivisions  3, 
4  and  5  of  Section  542  of  the  Code  of  Civil  Procedure, 
and  is  as  follovs^s: — 


No-? 


n;   233  ATTACHMENT    OK    I'KRSOXAL    i'ROI'ERTN'. 

"3.  Personal  property,  capable  of  manual  delivery, 
must  be  attached  by  taking  it  into  custody. 

"4.  Stocks  or  shares,  or  interest  in  stocks  or  shares, 
of  any  corporation  or  company,  must  be  attached  by 
leaving  with  the  president  or  other  head  of  the  same, 
or  the  secretary,  cashier  or  other  managing  agent 
thereof,  a  copy  of  the  writ,  and  a  notice  stating  that  the 
stock  or  interest  of  the  defendant  is  attached,  in  pursu- 
ance of  such  writ. 

"5.  Debts  and  credits,  and  other  personal  property, 
not  capable  of  manual  delivery,  must  be  attached  by 
leaving  with  the  person  owing  such  debts,  or  having 
in  his  possession  or  under  his  control  such  credits  and 
other  personal  property,  or  with  his  agent,  a  copy  of 
the  writ  and  a  notice  that  the  debts  owing  by  him  to 
the  defendant,  or  the  credits  and  other  personal  prop- 
erty in  his  possession,  or  under  his  control,  belonging 
to  the  defendant,  are  attached  in  pursuance  of  such 
writ,  "     (See  also  Sec.  264  as  to  garnishment.) 

ij  2:}^},.  Arizona. —  Levy  of  the  writ  of  attachment 
upon  jjersonal  property  is  made  by  taking  possession 
thereof,  when  the  defendant  is  entitled  to  the  posses- 
sion: where  the  defendant  has  an  interest  in  personal 
property,  but  is  not  entitled  to  the  possession  thereof, 
a  le\\-  is  made  thereon  by  giving  notice  thereof  to  the 
person  who  is  entitled  to  the  j)ossession,  or  one  of  them, 
when  there  are  several.  [Sees.  ^^,  igo6  Revised  Stat- 
utes, /8Sy.) 

"A  I(;\\'  upon  horsc!s,  mulcts,  jacks,  jennets,  horned 
cattle  or  hogs  running  at  large?  in  a  range,  and  which 
cannot  \n-  herded  and  j)enned  without  great  inconven- 
ience- and  exptMise,  mav  be  made-  by  designating  by 
reasonable  estimate  the  number  of  animals  and  describ- 


Al'TAClIMKN'r    OF    I'KRSONAL    I'ROI'KRl  \  .  §   233 


ing  them  by  their  marks  cind  brands,  or  either;  such 
levy  shall  be  made  in  the  presence  of  two  or  more  cred- 
ible persons,  and  notice  thereof  shall  be  given  in  writ- 
ing to  the  owner,  or  his  herder,  or  agent,  if  residing 
within  the  county  and  known  to  the  officer."  {Sec. 
igoy.) 

"A  levy  on  the  stock  of  any  corporation  or  joint 
stock  company  is  made  by  leaving  a  notice  thereof  with 
any  officer  of  such  company."     [Sec.  igo8.) 

"A  levy  upon  the  interest  of  a  partner  in  partnership 
property  is  made  by  leaving  notice  with  one  or  more 
of  the  partners,  or  with  a  clerk  of  the  partnership." 
(Sec.  igog.) 

In  this  State  it  is  provided  that,  in  making  the  levy, 
"the  officer  shall  first  call  upon  the  defendant,  if  he  can 
be  found,  or  if  absent,  upon  his  agent  within  the  county, 
if  known,  to  point  out  property  to  be  levied  upon;  and 
a  levy  shall  first  be  made  upon  the  property  designated 
by  the  defendant  or  his  agent;  provided,  that  if  it  be 
personal  property,  the  defendant  or  his  agent  deliver 
the  same  into  the  officer's  possession.  .  .  .  If,  in 
the  opinion  of  the  officer,  the  property  so  designated 
will  not  sell  for  enough  to  satisfy  the  execution  and 
costs  of  sale,  he  shall  notify  the  defendant  or  his  agent 
thereof;  whereupon  the  latter  may  make  an  additional 
designation."  [Sec.  igoi.)  "If  no  property  be  thus 
designated,  or  if  an  insufficient  amount  of  property  be 
designated,  it  shall  be  the  duty  of  the  officer  to  levy 
upon  the  property  of  the  debtor  subject  to  execution, 
in  the  following  order:  (i)  On  personal  or  movable 
property;  (2)  on  uncultivated  lands;  and  {3)  upon 
cultivated  lands."      (Sec.  igo2.) 

In  case  the  defendant  has  not  sufffcient  property  in 
his  possession  to  satisfy  the  debt,  a  writ  of  garnishment 


^   234  ATTACHMKXT  OF   I'ERSOXAl.   rkOPERTV. 

may  be  i.;-;ued  upon  the  affidavit  of  the  plaintiff,  and 
this  writ  must  be  promptly  served  by  the  sheriff  by  de- 
livering a  copy  thereof  to  the  garnishee.  After  answer 
made  by  him  and  trial  of  the  issue,  if  the  garnishee  is 
iound  to  be  indebted  to  the  defendant,  if  any  property 
of  the  defendant,  subject  to  execution,  is  found  to  be 
in  the  possession  of  the  garnishee,  he  shall  pay  over  or 
deliver  the  same  up  to  the  sheriff  to  be  held  by  him  in 
the  same  manner  as  property  attached.  {Sec.  /2-100 
Revised  Statutes,  iSSy. ) 

^234.  Colorado.^ — Levy  of  the  writ  of  attachment 
upon  personal  property  capable  of  manual  delivery  is 
made  by  taking  it  into  custody;  upon  stock  of  a  corpo- 
ration, by  leaving  a  copy  of  the  writ  with  the  presi- 
dent, secretary,  cashier  or  chief  clerk,  and  if  there  be 
no  such  officer,  then  with  some  other  officer,  with  a 
notice  of  the  levy.  {Sees.  100,  10^,  Sttb.  j,  Code  Civil 
Procedure. ) 

Credits  and  personal  property  in  the  hands  of  third 
j)arties  may  be  reached  by  writ  of  garnishment,  to  be 
issued  upon  request  of  the  plaintiff  after  diligent  search 
on  the  part  of  the  officer  has  failed  to  disclose  sufficient 
personal  property  to  satisfy  the  plaintiff's  claim.  This 
writ  is  served  and  returned  by  the  officer  in  the  same 
mann(T  as  summons.  The  officer  is  required  to  ad- 
minister an  oath  to  the  garnishee,  who  is  to  return 
written  answers  to  certain  statutory  interrogatories 
jjropounded  by  the  officer.  If  by  admission  of  the  gar- 
nishe^e  or  by  trial  of  the  garnishment,  credits  or  per- 
sonal propert)'  are  disclosed,  the  same  are  to  be  deliv- 
ered over  to  th('  officer,  to  l:)e  held  as  in  case  of  attached 
l^ropf-rty.      (.SVyx  iiS  ijg  Code  Civil  Procedure.) 


ATTACHN[K.\"r  OF   I'KRSOXA[.   I'ROl'KR'l\-.    §§  235-237 

§  235.    Idaho,  Montana,  Utah  and  Nevada.— 

The  manner  of  levying  the  writ  is  the  same  as  pre- 
scribed in  Section  542  of  the  Code  of  Civil  Procedure 
of  California,  given  in  full  in  Section  232  of  this  work, 
ante. 

Idaho.     Sees,  ^joy  ij  Revised  Statutes,  iSSy. 

A /on  tan  a.     Sees.  1 86-1  go  Code  Civil  Proeedure. 

A^evada.      Sees.  3150-3  General  Statutes,  1885. 

Utah.     Sees.  4/38  Code  Civil  Pfoeednre. 

%,  236.  Oregon. — Personal  property  capable  of 
manual  delivery  to  the  sheriff",  and  not  in  the  possession 
of  a  third  person,  is  attached  by  taking  it  into  his  cus- 
tody. 

Other  personal  property  is  attached  by  leaving  a 
certified  copy  of  the  writ,  and  a  notice  specifying  the 
property  attached,  with  the  person  having  the  pos- 
session of  the  same,  or  if  it  be  a  debt,  then  with  the 
debtor,  or  if  it  be  rights  or  shares  in  the  stock  of  an 
association  or  corporation,  or  interest  or  profits  thereon, 
then  with  such  person  or  officer  of  such  association  or 
corporation  as  the  code  authorizes  a  summons  to  be 
served  upon.     (See.  i^g  I  Hill's  Codes,  i8g2.) 

Proceedings  may  be  taken  for  examination  of  a  gar- 
nishee and  payment  or  delivery  by  him  to  the  officer 
of  any  personal  property  or  debts  owing  to  or  belong- 
ing to  the  defendant.  .  (Sees.  132,  id^-iyi  I  Hill's 
Codes,  i8g2.) 

§  237.  Washington. — Personal  property  capable 
of  manual  delivery  is  attached  by  taking  it  into  custody. 

Stocks  or  shares,  or  interest  in  stock  or  shares,  of 
any  corporation,  association  or  company  are  attached 
by  "leaving  with    the  president   or  other  head  of  the 


§  238     ATTACHMENT  OF  PERSONAL  PROPERTY. 

same,  or  the  secretary,  cashier  or  managing-  agent 
thereof,  a  copy  of  the  writ,  and  a  notice  stating  that 
the  stock  or  interest  of  the  defendant  is  attached  in 
pursuance  of  the  writ." 

Debts  and  credits,  and  other  personal  property  not 
capable  of  manual  delivery,  are  attached  "by  leaving 
with  the  person  owing  such  debts,  or  having  in  his 
possession  or  under  his  control  such  credits  or  other 
personal  property,  a  copy  of  the  writ  and  a  notice  in 
writing  that  the  debts  owing  by  him  to  the  defendant, 
or  the  credits  and  other  personal  property  in  his  pos- 
session or  under  his  control,  are  attached  in  pursuance 
of  such  writ."     (Sec.  joo  II  Hiirs  Codes,  i8g2.) 

When  neither  the  officer  nor  the  plaintiff  can  find 
sufficient  property  to  satisfy  the  claim  sued  on,  the 
defendant  may  be  examined  under  oath,  and  any  "debts 
and  credits  attached  may  be  collected  by  the  sherift",  if 
the  same  can  be  done  without  suit,"  the  officer's  receipt 
being  a  sufficient  discharge  for  the  amount  paid.  (Sees. 
JO  I,  JO  J  II  Hill's  Codes.) 

A  sheriff  or  constable  may  be  garnisheed  for  money 
of  the  defendant  in  his  hands,  as  also  may  a  judgment 
debtor  of  the  defendant,  unless  the  judgment  has  been 
assigned  on  the  record.  Money  in  court  may  be 
attached,  and  an  executor  or  administrator  may  also  be 
garnisheed  for  money  due  from  the  decedent  to  the 
defendant.     (Sees,  jod-y  II  Hilts  Codes.) 

§  238.     Attachment  of  Vessels.     In  California 

the  Code  makes  special  provisions  for  attachment  and 
sale  of  steamers,  vessels  and  boats.  (Sees.  8ij-82y 
Code  Civil  Procedure.)  "The  writ  must  be  directed 
to  the  sheriff  of  the  county  within  which  the  steamer, 
vessel    or    boat    lies,   and    direct    him    to   attach    such 


ATTACHMENT  OF  l^ERSONAL  PROPERTY.    §§239-241 

Steamer,  vessel  or  boat,  with  its  tackle,  apparel  and 
furniture,  and  keep  the  same  in  his  custody  until  dis- 
charpfed  in  due  course  of  law.  The  sheriff  .  . 
must  execute  the  writ  without  delay,  and  must  attach 
and  keep  in  his  custody  the  steamer,  vessel  or  boat 
named  therein,  with  its  tackle,  apparel  and  furniture ;-, 
.  .  .  but  the  sheriff  is  not  authorized  by  any  such 
writ  to  interfere  with  the  discharge  of  any  merchandise 
on  board  of  such  vessel,  or  with  the  removal  of  any 
trunks  or  other  property  of  passengers,  or  of  the  cap- 
tain, mate,  seamen,  steward,  cook  or  other  persons 
employed  on  board."  The  attachment  may  be  released 
upon  the  usual  undertaking,  if  there  are  no  claims  for 
wages  against  the  vessel.     (Sees.  818-82 j  C.  C.  P.) 

Special  provision  is  also  made  in  Montana  for  the 
attachment  of  boats  and  enforcement  of  claims  against 
them.     (Montana.     Sees.  206-222  C.  C.  P.) 

\  239.    Statutory  Procedure  Exclusive. — When 

a  method  of  procedure  is  laid  down  by  statute  for  the 
bringing  of  suits,  levy  of  attachments  and  executions 
against  vessels,  it  would  appear  that  such  procedure  is 
exclusive  of  all  provisions  of  the  general  law  conflicting 
therewith;  but  that  all  provisions  of  the  general  law  not 
conflicting  are  operative.  This  is  in  line  with  the  set- 
tled rules  of  construction.  (See  Sees.  4482-/}.  Code 
Civil  Proeeeiure,  California.) 

§  240.    Building  as  Personal  Property.— When 

a  house  is  personal  property,  it  is  personal  property 
capable  of  manual  delivery,  and  must  be  attached  as 
such. 

§  241.  Necessity  of  Prompt  Action.— As  per- 
sonal  property,  capable  of   manual  delivery,  must  be 

10 


§  242     ATTACHMENT  OF  I'P:RS()\AL  I'ROPERrV. 

attached  by  taking-  it  into  custody,  so  no  unnecessary 
time  should  be  lost  in  executing-  the  writ.  It  not  in- 
frequently happens  that  the  defendant  in  the  action  has 
become  suspicious  that  proceedings  are  about  to  be 
taken  against  his  property,  and  that  to  avoid  the  antici- 
pated seizure  he  is  seeking  to  transfer  his  effects.  In 
such  cases,  moments  of  time  lost  represent  property 
fleeting  as  with  wings,  and  the  creditor  is  thus  momen- 
tarily in  danger  of  losing  his  debt.  The  object  of  the 
writ  is  to  enable  him  to  secure  his  claim,  if  it  be  a  just 
one,  and  the  law^  places  the  services  of  the  officer  at  his 
command  to  accomplish  that  purpose.  After  carefully 
inspecting  the  writ  to  assure  himself  that  it  is  in  due 
form,  and  complying  with  the  legal  requirements  relat- 
ing to  his  fees  for  service,  the  officer  must  indorse  upon 
the  writ  the  time  of  its  reception.  He  should  proceed 
at  once  to  the  place  indicated  to  him  as  the  location  of 
the  property,  and  take  it  into  custody,  unless  the  de- 
fendant give  him  the  statutory  undertaking  to  prevent 
the  attachment.      (See  also  Sec.  26,  ante.) 

§  242.    Liability  for  Delay.-  In   proceeding  to 

make  a  le\v  upon  personal  property,  it  the  defendant 
express  a  wish  to  gi\'e  the  statutory  undertaking  to 
prevent  or  to  release  the  attachment,  the  officer  may 
exercise  his  judgment  as  to  whether  he  can  safely  ab- 
stain from  l('\ying  until  the  defendant  shall  have  had 
sufficient  time  to  get  his  sureties  and  execute  the  un- 
dertaking. In  dc^ferring  a  ]("v\',  howevtn',  the  officer 
does  so  at  his  own  risk.  The  propertx^  is  within  his 
reach,  and  he  becomes  responsible  to  the  plaintift  tor 
what<n<'r  loss  ma)-  be  sustained  1)\  reason  ot  his  neg- 
lect. 


ATTACHMENT  OF   PKKSOXAl,   I'ROI'ERTV.  ^   243 

^  243.  What  Acts  of  Officer  Are  Justified  un- 
der Writ. — The  writ  commands  the  officer  to  attach 
and  safely  keep  all  the  property  of  the  defendant  within 
the  county  not  exempt  from  execution,  or  so  much 
thereof  as  may  be  sufficient  to  satisfy  the  plaintiff 's  de- 
mand, unless  the  defendant  gives  the  statutory  under- 
taking for  release.  If  the  property  to  be  attached  is 
in  a  store,  he  may  seize  and  take  away  sufficient  of  the 
stock  of  goods  to  meet  the  requirements  of  the  writ. 
He  may  attach  money  in  a  drawer  or  safe  or  wherever 
found,  but  he  cannot  take  property  from  the  person  of 
the  defendant,  except  it  be  money  or  other  valuables  in 
a  bag  or  package  in  the  hand  of  the  defendant.  He 
may  not  break  open  the  outer  door  or  window  of  a 
dwelling  house  to  make  a  levy,  nor  gain  admission 
thereto  by  even  lifting  the  latch  of  an  outer  door.  But 
if,  after  gaining  peaceable  and  lawful  admission  to  the 
house,  there  is  property  of  the  defendant  therein, 
he  may  take  it  even  if  he  be  compelled  to  break  the 
inner  doors  of  the  house  to  reach  it.  If  property  to  be 
attached  is  in  a  buildins:  other  than  a  dwellino-,  he  mav 
use  whatever  force  may  be  necessary  to  enable  him  to 
serve  the  writ,  but  he  must  first  announce  his  office  and 
business  and  make  demand  for  admission.  If  resist- 
ance is  made  to  the  service,  he  may  call  to  his  aid  what- 
ever assistance  is  needful.  But  he  should  not  go  away 
from  the  place  where  the  property  is  situated,  to  pro- 
cure aid,  if  he  can  avoid  doing  so,  for  he  will  do  so  at 
the  risk  of  losing  the  goods  during  his  absence. 

Personal  property  is  not  attached  until  it  is  within" 
the  view  of  the  officer.  The  mere  formality  of  stand- 
ing at  an  outer  door  of  a  building  in  which  goods  are 
situated,   and    placing   guards  or   keepers  around    the 


§  244     ATTACHMENT  OF  PERSONAL  PROPERTY. 

building  does  not  constitute  a  levy.  { Taffts  vs.  Man- 
love,  14  Cal.  /fj;  Sec.  244,  post. ) 

The  extent  to  which  an  officer  may  proceed  in  the 
use  of  force,  in  the  breaking  into  a  building  to  levy 
upon  the  goods  of  a  debtor,  has  not  been  determined 
by  any  Supreme  Court  decisions  of  this  State.  Al- 
though a  man's  dwelling  is  by  law  deemed  to  be  his 
castle  and  sacred  from  intrusion,  it  is  not  so  with  his 
warehouse,  store  or  place  of  business.  It  has  been 
definitely  settled  in  many  of  the  older  states  whose 
laws  are  similar  to  those  of  California,  that  an  officer 
cannot  break  open  the  outer  door  of  the  defendant's 
dwelling-,  nor  even  lift  the  latch  thereof  to  rain  admis- 
sion,  to  seize  the  defendant's  property.  After  having 
gained  peaceable  entrance,  however,  he  may  break  the 
inner  doors,  closets,  drawers,  boxes,  chests  or  trunks, 
to  seize  property.  In  all  cases  where  force  may  be 
used,  the  officer  should  first  demand  admission.  The 
outer  door  of  the  defendant's  store  or  other  place  of 
business  may  be  broken  open  by  an  officer  to  enable 
him  to  make  a  levy,  but  all  undue  violence  should  be 
avoided  when  possible. 

§  244.    What  Acts  Necessary  in  Making  Levy» 

— As  the  writ  is  only  effectual  from  the  time  a  valid 
and  legal  levy  of  the  process  has  been  completed,  the 
question  often  arises,  What  constitutes  a  levy,  valid 
and  sufficient  in  law  to  vest  the  property?  In  Taffts 
vs.  Manlove,  14  Cal.  47,  the  court  say  :— 

"  It  may  be  admitted,  as  unquestionably  the  law  is, 
that  a  l(;vy  may  be  good  as  against  the  defendant  in 
the  writ,  wh<n  il  would  not  be  good  as  to  third  persons. 
But  we  ap];rch(.'nd  that  this  distinction  is  not  based 
upon  any  difference  in   the  legal   requisites  of  a  levy. 


ATTACHMENT  OF  PERSONAL  PROPERTY.     §  244 

but  in  the  fact  that  the  conduct  of  the  defendant,  either 
by  positive  or  negative  acts,  may  amount  to  a  waiver, 
or  an  estoppel,  or  agreement  that  that  shall  be  a  levy 
which,  without  such  conduct,  would  not  be  sufficient. 
However  this  may  be,  we  can  conceive  of  no  principle 
of  law,  and  have  been  referred  to  no  case,  which  holds 
that  the  acts  relied  on  by  appellant  constitute  a  levy. 
Waiving  everything  else,  the  essential  element  of  an 
intention  to  levy  prior  to  the  entry  seems  to  be  wholly 
wanting,  from  anything  we  can  see  in  the  agreed  state- 
ment. That  the  sheriff  came  to  the  house  in  order  to 
make  the  levy  is  very  certain  ;  but  that  he  intended  to 
make,  or  considered  he  had  made,  a  levy  on  goods  in 
the  house,  by  standing  at  one  door  and  putting  his 
companion  at  the  other,  does  not  appear.  He  made 
then  no  note  or  memorandum  of  the  levy — did  not, 
perhaps,  even  know  what  goods  were  in  the  store,  their 
description  or  value  ;  and  besides  this,  demanded  the 
key  afterward  and  entered,  and  then  seized  the  goods, 
took  the  inventory,  and  indorsed  the  levy.  There  is 
neither  proof  nor  probability  that,  before  this  time,  he 
considered  he  had  seizetl  the  goods,  or  if  he  did,  we 
think  he  was  clearly  mistaken. 

"In  Crocker  on  Sheriffs,  section  425,  p.  172,  it  is 
said :  'A  levy  upon  personal  property  is  the  act  of 
taking  possession  of,  seizing  or  attaching  it  by  the 
sheriff  or  other  officer,'  etc.  It  is  true,  the  author,  in 
Section  427,  says:  'As  against  the  defendant  in  exe- 
cution, no  great  strictness  of  form  will  be  necessary 
in  making  a  levy  upon  personal  property.  Thus  the 
mere  entering  by  the  sheriff  of  the  property  of  the 
defendant,  with  his  assent,  upon  the  execution,  will  be 
conclusive  upon  such  defendant,  though  the  property 
is  not  present,  and  the  officer  does  not  know  where  it 


§   245  ATTACHMENT  OF  PERSONAL  PROPERTY. 

is.'  But  this  authority  and  the  cases  cited  by  appel- 
lant's counsel  are  far  from  proving  the  proposition  they 
labor  to  sustain.  It  is  not  necessary  to  review  these 
cases,  for  all  of  them  turn  upon  a  wholly  different  prin- 
ciple from  that  invoked.  The  principle,  namely,  that 
the  assent  of  the  defendant  is  sufficient  as  aofainst  him, 
even  where  the  goods  are  not  within  view,  or  subject 
to  the  dominion  of  the  officer. 

"  But  it  cannot  be  necessary  to  pursue  this  inquiry. 
It  is  too  plain  for  argument  that  there  can  be  no  levy 
when  the  officer  does  not  even  know  the  subject  of  the 
levy.  As  well  might  a  sherifl"  stand  in  the  street  and 
levy  upon  the  contents  of  a  banking  house,  as  to  stand 
in  a  store  door  at  midnight,  and  claim  that  merely  by 
standing  there  and  preventing  any  person  from  coming 
into  the  store,  he  had  levied  on  the  contents,  whatever 
they  were,  of  the  store,  and  this  without  having  any 
knowledge  of  the  nature  of  the  stock,  much  less  of 
the  particular  description  or  value.  But,  as  we  said 
before,  nothing  appears  to  show  that  the  mere  watch- 
ing and  guarding  of  the  storehouse  was  meant  to  be  a 
levy  on  the  property  inside  ;  but  these  were  acts  merely 
in  prosecution  of  the  design  to  enter  the  house  and 
levy  on  the  i)roperty  there,  which  purpose  was  after- 
ward accomplished."     (See  also  Sers.  2^^  6.) 

§  245.    What  Constitutes  Taking  into  Custody. 

—  If  a  sheriff  attaches  personal  property,  consisting  of 
a  portable  steam  threshing  engine  and  accompanying 
articles  used  for  threshing,  by  making  a  memorandum 
of  the  pr()p<Tt\'  and  delivering  a  cojjy  of  the  attach- 
ment, summons  and  coniplaiiU  to  the  d('f("ndant,  and 
th('n  directing  verljally  a  person  who  is  at  work  one 
hundred   yards  from  the  j>lace  where  the  property  lies,. 


AITACMMENT  OF   PERSONAL  I'ROI'KRTV.  ^   246 

to  look  after  it,  and  if  anyone  meddles  with  it  to  tell 
them  it  is  attached,  he  has  sufficient  custody  of  the 
property  as  against  persons  purchasing-  it  from  the 
defendant  with  knowledge  of  the  attachment.  (Rogers 
vs.  Gilniore,  5/  Cal.  jio.)  In  deciding  this  case,  the 
court  said  : — 

"The  statute  requires  that  the  officer  should  take 
the  property  into  custody.  And  it  seems  by  the  author- 
ities that  what  that  means  is  governed  somewhat  by 
the  situation  or  relation  of  the  parties  making  the  con- 
test. It  is  supposed  that  as  against  Gilmore  himself 
there  was  sufficient  custody  of  this  property  to  hold  it. 
Against  another  attaching  creditor  there  may  not  have 
been.  Against  a  purchaser  from  Gilmore,  in  o-ood 
faith,  there  may  not  have  been.  But  the  court  is  of 
the  opinion  that  the  defendants  purchasing  from  him 
7uith  notice  of  the  attachment,  it  is  a  sufficient  custody 
as  against  them."     (See  also  Sees.  2^.^,  •^-/^•) 

5  246.    Property  Must  Be  within  View  of  the 

Officer. — The  levy  to  be  valid  must  be  made  by  taking 
the  goods  into  his  custody  and  under  his  exclusive 
control.  The  articles  must  be  within  the  power  of  the 
officer.  He  must  continue  to  retain  this  power  over 
them  by  remaining  present  himself,  by  appointing  an 
agent  or  keeper  in  his  absence,  by  taking  a  receipt  for 
the  property,  by  inventorying  them,  or  by  a  seasonable 
removal  of  them.  It  is  not  necessary  that  they  should 
be  removed,  but  they  must,  in  all  cases,  be  put  out  of 
the  control  of  the  debtor.  When  the  attachment  is 
levied,  the  property  must  be  within  the  view  and  sub- 
ject to  the  control  of  the  officer.  (See  also  Sees.  24^-4^ 
ante. ) 


§^  247-249    ATTACHMENT  OF  PERSONAL  PROPERTY. 

§  247.  Void  Levy —Instances.— A  levy  made  by 
a  constable  on  eoods  which  he  does  not  see  or  have  in 
his  possession  is  void.  i^Herron  vs.  Hughes,  2^  Cal. 
S56.)  A  levy  brought  about  by  unlawfully  bringing 
property  from  one  jurisdiction  into  another  for  that 
purpose  is  held  to  be  utterly  void. 

§  248.    Property  Must  Be  Kept  in  Custody. — 

When  the  statute  requires  the  officer  to  levy  upon  per- 
sonal property  by  taking  it  into  custody,  the  officer 
c;uinot  safely  leave  it  in  the  possession  of  the  defend- 
ant after  making  the  levy.  The  principle  is  laid  down 
in  Dutertre  vs.  Driard,  7  Cal.  549,  and  Sanford  vs.  Bor- 
ing, 12  Cal.  539,  that  if,  after  a  levy  of  a  writ  of  attach- 
ment upon  personal  property,  by  taking  it  into  posses- 
sion, the  officer  permit  the  defendant  in  attachment  to 
resume  its  possession,  the  levy  would  be  thereby  de- 
feated as  against  execution  or  attachment  creditors 
subsequently  levying  thereon,  or  against  a  subsequent 
purchaser  from  the  defendant  in  attachment,  who,  upon 
such  purchase,  takes  the  possession  thereof. 

§  249.  Sheriff  Responsible  for  Property  Lev- 
ied Upon.  ~A  sheriff  who  levies  a  writ  of  attachment 
upon  personal  property,  in  obedience  to  the  commands 
of  the  writ,  has  no  right  to  let  the  property  go  out  of 
his  hands,  except  in  due  course  of  law,  and  if  he  does, 
and  the  debt  is  lost,  he  is  responsible  to  the  plaintiff  in 
the  attachment  for  the  amount  of  the  debt.  In  the 
case  of  .Sanford  vs.  IJoring,  the  defendant  was  sued  as 
sheriff  for  a  faihirc  to  make  a  U:vy  and  sale  of  property 

prt'vioLisly  attached  in  the  same  suit — under  an  exe- 
( iili(jn  issLKtd  upon  a  judgment  in  favor  of  plaintiff  and 
atrainst  PultiKV  t\:  .Xmistronir.      When  the  sheriff  took 


ATTACHMENT  OF   PERSONAL   I'ROPERTV.  §250 

the  property  under  the  writ  of  attachment,  he  did  not 
remove  it,  but  left  it  all  in  the  stable  where  it  was  at- 
tached, and  in  the  possession  of  Armstrong,  one  of  the 
then  defendants,  who  continued  in  possession,  and 
conducted  the  business  as  he  had  done  before.  The 
sheriff  did  not  make  the  money,  owing-  to  a  subsequent 
levy  and  sale  of  the  property  under  execution  against 
the  same  parties.  In  deciding  the  case  adversely  to 
the  officer,  the  Supreme  Court  says: — 

"The  levy  of  the  attachment  placed  the  property  in 
the  hands  of  the  sheriff  to  abide  the  judgment  and  exe- 
cution, and  this  property  was  the  plaintiff's  security  for 
his  debt.  If  the  sheriff  wasted  or  lost  it,  or  suffered  it 
to  be  diverted  to  some  other  purpose,  he  is  liable.  He 
had  no  right  to  suffer  the  property  to  go  out  of  his  pos- 
session, except  in  due  course  of  law,  and  is  responsible 
if  he  did."     {Sanford  vs.  Boring,  12  Cal.  ^jg.) 

I  250.    Removal  of  Attached  Property. — When 

goods  are  attached  in  a  store,  dwelling,  hotel  or  other 
establishment,  and  the  defendant  shows  no  inclination 
to  procure  a  release  of  the  attachment,  or,  on  the  con- 
trary, desires  the  property  removed,  and  that  no  keeper 
be  left  upon  his  premises,  the  wishes  of  the  owner 
should  be  complied  with  as  soon  as  practicable.  How 
soon  must  depend  upon  the  circumstances  of  the  case. 
For  while  it  is  not  only  the  right  but  the  duty  of  the 
officer  to  seize  the  creditor's  property,  yet  the  creditor's 
house  is  his  castle,  and  the  officer  by  remaining  therein, 
or  by  leaving  his  keeper  therein,  an  unreasonable  length 
of  time,  becomes  a  trespasser  and  may  be  ejected  there- 
from. He  is  not  bound  to  remove  the  o-oods  in  the 
nighttime,  when  the  levy  has  been  made  at  too  late 
an  hour  of  that  day  to  enable  him  to  take  them  away 
with  safetv. 


§§251,  252    ATTACHMENT  OF  PERSONAL   PROPERTY. 

§  251.  Excessive  Levy. — If  there  is  sufficient 
property  in  the  defendant's  possession  to  satisfy  the 
claim  of  the  attaching  crecHtor,  with  costs,  he  will  be 
liable  to  the  latter  if  he  does  not  levy  upon  sufficient 
goods  to  satisfy  the  judgment.  If,  on  the  other  hand, 
he  make  an  excessive  levy,  he  is  liable  to  the  defendant 
in  the  action.  Where  there  is  great  uncertainty  at  the 
time  of  the  levy  as  to  the  value  of  the  property  attached, 
and  it  is  subsequently  ascertained  that  its  value  is 
greatly  in  excess  of  the  demand  sued  for,  it  does  not 
follow  that  the  levy  was  therefore  excessive.  It  is  the 
duty  of  the  officer  to  seize  sufficient  property  to  satisfy 
the  amount  specified  in  the  writ — that  is  to  say,  prop- 
erty which  would  be  sufficient,  in  his  judgment,  when 
sold  at  public  auction.  There  are  times  when  from 
the  situation  of  the  property,  and  other  circumstances, 
there  must  be  great  uncertainty  as  to  its  value,  and  be- 
cause it  may  turn  out  afterwards  that  the  value  of  the 
property  is  much  greater  than  the  demand,  it  does  not 
follow  that  the  levy  was  therefore  excessive.  {Sexev- 
vs.  Adkison,  ^o  Cal.  ^08.) 

I  252.    Authority  to  Conduct  Business  under 

Attachment. — An  attorney  has  no  authorit\-,  by  virtue 
of  his  employment  as  such,  to  instruct  a  sheriff  to 
conduct  a  business,  such  as  a  restaurant,  ujjon  which 
an  attachment  has  been  levied,  and  thereby  bind  his 
client  for  the  expenses  incurred.  This  is  laid  down  as 
the  law  in  California,  in  Alexander  z-jr.  I  )enaveaux,  53 
Cal.  663.  59  Cal.  479,  and  is  in  accordance  with  Section 
2<S3  of  the  Code  of  Civil  Procedure  of  California,  which, 
in  Subdivision  1,  defines  the  authorit\'  of  an  attorney: 
"To  bin<l  his  client  in  an\'  of  the  steps  ot  an  action  or 
proce<:diug   by  his  agreement   filed   with   the  clerk,   or 


ATTACHMENT  OK  I'KRSOXAT  PROFKRTV.    §253-255 

entered  upon  the  minutes  of  the  court,  and  not  otJicr- 
luise^  There  are  decisions  to  the  contrary  in  other 
states,  but  they  are  probably  based  upon  less  stringent 
laws  relating  to  clientage. 

§  253.  Allowing  Defendant  to  Conduct  Busi- 
ness.— The  fact  that  a  stock  of  goods  in  a  store  is  at- 
tached is  not  positive  evidence  that  the  defendant  is 
insolvent  and  unable  to  pay  the  claim.  Where  the  offi- 
cer knows  the  debtor  to  be  solvent,  he  may  be  morally, 
although  not  legally,  justified  in  permitting  the  debtor's 
business  to  go  on  for  a  brief  time,  to  enable  him  to  set- 
tle with  the  attaching  creditor,  the  officer  in  the  mean- 
time placing  a  keeper  in  charge  of  the  goods,  with  the 
understanding  that  all  moneys  received  by  sales  shall 
be  turned  over  to  the  ofticer.  When  the  officer  makes 
this  concession  to  the  defendant,  he  of  course  does  it 
upon  his  own  responsibility,  and  is  liable  for  any  loss  to 
the  attachinor  creditor  which  mav  result  therefrom. 
(See  also  Sec.  2^2,  ante.) 

§  254.  Officer's  Lien  Dependent  on  Posses- 
sion.— An  officer  who  levies  an  attachment  or  execu- 
tion upon  personal  property  acquires  a  special  lien, 
dependent  on  possession,  upon  such  property,  which 
authorizes  him  to  hold  it  until  the  process  is  discharged 
or  satisfied,  or  a  judicial  sale  of  the  property  is  had. 
(California.     Sec.  jo^y  Civil  Code.) 

§  255.    Attachment  of  Partnership  Property. 

— A  sheriff,  under  an  attachment,  must  take  possession 
of  the  personal  property  upon  which  he  levies.  Being 
authorized  to  seize  the  interest  of  one  of  several  part 
owners  in  a  chattel,  he  must  take  the  sole  possession  of 


§  256     ATTACHMENT  OF  PERSONAL  PROPERTY. 

it,  in  order  that  it  may  be  forthcoming  at  the  day  of 
sale.  If  a  sheriff  has  a  writ  of  attachment  against  one 
member  of  a  partnership,  he  must  attach  the  interest  of 
that  partner  in  the  partnership  effects,  and  in  order  to 
do  so  may  take  possession  of  the  entire  property. 
{Clai'-k  vs.  Gushing,  ^2  Cal.  6iy.) 

This  subject  is  discussed  at  length  in  the  chapter  on 
"  Executions  against  Personal  Property"  (Sections 
399-435,  post),  where  several  authorities  are  cited,  the 
rule  being  the  same  in  case  of  attachment  as  on  levy  of 
execution,  and  also  the  same  in  case  of  a  tenancy  in 
common  in  chattels. 

§  256.    Sheriff's  Keeper— Suggestions. — In  the 

attachment  of  personal  property,  the  officer  is  respon- 
sible for  its  value  from  the  moment  the  attachment  is 
levied.  If  the  plaintiff  recover  judgment,  he  will  look 
to  the  officer  for  the  value  of  the  goods  levied  upon,  or 
sufficient  thereof  to  satisfy  his  judgment. 

Hence  it  will  be  seen  that  the  preservation  of  the 
property  is  of  the  utmost  importance.  If  the  property, 
or  any  portion  of  it,  be  not  forthcoming  at  the  proper 
time,  the  officer  must  make  the  loss  good.  W^hen  a 
keeper  is  required,  the  officer  should  select  the  person 
who  is  to  take  care  of  the  property.  Neither  the  plain- 
tiff nor  the  defendant  may  dictate  to  the  officer  as  to 
who  shall  take  charge  of  the  goods.  The  writ  com- 
mands him  to  "attach  and  safely  keep  the  property." 
lie  should  make  the  expense  of  keeping  it  as  light  as 
possible,  consistent  with  its  safe  keeping. 

Where  a  iiiuuial  frlciul  (jf  the  attaching  creditor  and 
debtor  offers  to  act  as  keeper  without  pay,  and  the  offer 
is  accejjted,  a  stipulation  to  that  effect  should  be  given 
to  the  officer,   in   writing,  signed  by  the  creditor  and 


1 


ATTACHMENT  OF  PERSONAL  PROPERTY.    §  257 

debtor  and  the  keeper.  Experience,  however,  teaches 
that  such  a  concession  is  often  productive  of  annoyance 
and  loss.  The  person  thus  acting  as  keeper  is  likely 
to  consider  himself  less  the  trusted  agent  of  the  officer 
than  the  oblieingf  friend  of  one  or  the  other  of  the  liti- 
CTants.  In  such  cases,  circumstances  are  liable  to  arise 
wherein  he  cannot  faithfully  serve  two  masters — the 
litigant  on  the  one  hand,  and  the  officer  on  the  other. 
Such  a  course  may  sometimes  be  followed  with  safety, 
when  there  is  but  one  attachment  on  the  property.  But 
if  a  second  writ  is  placed  in  the  hands  of  the  officer, 
the  officer  becomes  also  liable  to  the  second  attaching 
creditor,  and  should  assume  such  control  over  the  goods 
as  could  not  be  questioned. 

In  one  case  a  sheriff  attached  the  contents  of  a  livery 
stable,  and  by  request  of  the  attaching  creditor  and 
debtor,  placed  a  mutual  friend  in  charge  as  keeper,  who, 
by  verbal  agreement,  was  to  serve  without  pay.  Some 
days  afterwards  the  plaintiff  notified  the  sheriff  that  the 
suit  had  been  settled.  The  officer  returned  the  writ  in 
due  time  and  dismissed  the  affair  from  his  mind.  In 
the  meantime,  the  stable  had  changed  hands,  and  in  the 
course  of  some  months  later,  the  defendant  brought  an 
action  against  the  officer  for  the  return  of  the  property 
attached  or  the  value  thereof  The  officer  found  to  his 
cost  that  he  had  been  dealing  with  unscrupulous  per- 
sons, and  had  a  narrow  escape  from  paying  a  heavy 
pecuniary  penalty  for  his  laxity  in  dealing  with  them  in 
the  earlier  proceedings. 

§  257.     Expense    of    Keeping    Property. — In 

keeping  property  under  process,  the  same  prudence  and 
economy  should  be  exercised  as  in  the  ordinary  business 
affairs  of  life.      No  unnecessary  expense  should  be  in- 


§§258,  259    ATTACn.MKXT  OF   I'HRS(J.\AL   I'KOI'KkTV. 

curred  therein.  Where  the  fee  bill  of  the  county  pro- 
vides that  the  costs  of  the  officer  shall  be  allowed  by 
the  court,  a  statement  of  the  costs  should  be  submitted 
to  the  court  for  approval  before  the  return  is  made  upon 
the  writ. 

A  deputy  sheriff  who  seizes  property  under  an  attach- 
ment is  not  authorized,  by  virtue  of  his  office,  to  bind 
the  sheriff  by  contract  for  the  payment  of  a  keeper  to 
take  charge  of  the  property  so  attached.  Special  au- 
thority for  this  purpose  must  be  shown.  [Kriini  vs. 
King,  12  Cal.  412.) 

I  258.    Consideration  to  be  Shown  Defendant. 

—  In  making  the  seizure,  the  officer  should  exhibit  as 
much  regard  for  the  position  of  the  defendant  as  he  can 
consistently  with  the  duty  he  owes  to  the  law,  the  cred- 
itor's rights  and  to  himself  He  should  under  no  cir- 
cumstance conduct  himself  tyrannically  toward  the 
debtor,  nor  proclaim  the  debtor's  misfortune  from  the 
house  top.  Yet,  to  constitute  a  valid  levy,  the  courts 
ha\e  held  that  some  open,  unequivocal  act  should  be 
done  that  would  lead  all  persons  to  know  that  the  prop- 
erty was  no  longer  in  the  custody  of  its  former  owner, 
but  in  that  of  the  law".  The  levy  of  the  attachment 
should  be  announced  to  whoever  may  be  present  in 
charge  of  the  propert)',  and  if  it  is  necessary  for  the 
safe. keeping  of  th(!  propertx',  a  keeper  should  be  put  in 
charge  thereof 

5  259.    What  May  Be  Levied  Upon. — Plaintiff 

was  walking  along  the  street  with  a  bag  ot  gold  coin 
in  his  hand.  Two  of  defendants,  a  dei)uty  sheriff  and 
constable,  seized  him,  and  1)\-  force-  took  the  bag  of 
coin  from  him.       Ihc  court  held  ((Irccn  vs.  Palmer,   15 


ATTACHMKNT  OK   PHRSONAf,   I'R()l'F.K'r\-.  §   259 

Cal.  412)  that  from  its  seizure  thus  situ^itcd,  the  plaintift' 
could  not  claim  any  exemption,  as  he  might  perhaps 
do  in  reference  to  money  upon  his  person.  Thus  situ- 
ated, it  was  like  a  horse  held  by  its  bridle,  subject  to 
seizure  under  execution  against  its  owner. 

As  indicatinor  an  instance  wherein  money  in  the 
hands  of  a  bailee  may  be  attached,  the  case  of  Chandler 
vs.  Booth,  1 1  Cal.  342,  is  cited,  where  A,  who  carried 
on  a  printing  office,  and  was  indebted  to  the  hands  of 
the  office,  placed  in  the  hands  of  B  a  certain  amount 
of  money,  with  directions  to  B  to  pay  the  hands,  which 
B  neglected  to  do,  and  where  there  was  no  evidence 
showincr  that  the  hands  agreed  to  look  to  B  for  their 
money,  or  that  A  was  indebted  to  the  hands  in  an 
amount  equal  or  approximate  to  the  sum  in  B's  hands, 
and  the  money  was  subsequently  attached  in  the  hands 
of  B  at  the  suit  of  C  against  A,  it  was  held  that  the 
money  was  liable  to  the  attachment. 

The  sheriff  cannot  attach  money  collected  on  execu- 
tion in  his  own  hands.  If  at  any  time  such  money  is 
subject  to  other  process  in  his  hands,  such  process 
must  be  executed  by  the  coroner.  Money  in  the  hands 
of  the  sheriff,  collected  on  execution,  is  not  a  debt  due 
to  the  plaintiff  in  the  execution,  but  is  in  the  custody 
ot  the  law  until  properly  disposed  of,  and  is  not  the 
subject  of  attachment  or  garnishment.  (Clynier  vs. 
Willis,  3  Cal.  363.) 

The  indebtedness  of  the  maker  upon  a  promissory 
note,  before  its  maturity,  is  not  the  subject  of  attach- 
ment. His  obligation  is  not  to  the  payee  named  in 
the  note,  but  to  the  holder,  whoever  he  may  be.  Nor 
can  such  indebtedness,  after  the  maturity  of  the  note, 
be  attached,  unless  the  note  is  at  the  time  in  the  pos- 
session of  the  defendant,  from   whom   its  delivery  can 


§§  26o,  261  ATTACHMENT  OF  PERSONAL  PROPERTY. 

be  enforced  on  its  payment  upon  the  attachment. 
(Gregory  vs.  Higgins,  10  Cal.  jjg.) 

Property  in  the  custody  of  the  law,  or  in  the  hands 
of  a  receiver  appointed  by  a  competent  court,  is  not 
hable  to  seizure  without  an  order  from  the  court  having 
charge  thereof  ( Vuda  Co.  z^s.  Adams  &  Co.,  7  Cal. 
j^;  Adams  vs.  Haskell,  6  Cal.  11  j.) 

Funds  in  the  hands  of  a  receiver,  in  a  suit  for  disso- 
lution of  a  partnership,  are  subject  to  attachment  at 
any  time  before  a  final  decree  of  dissolution  and  distri- 
bution. (Adams  vs.  Woods,  g  Cal.  2^.)  See  also 
Sec.  216,  ante. 

§  260.  Certain  Building  Materials  Not  Attach- 
able.—"Whenever  materials  shall  have  been  furnished 
for  use  in  the  construction,  alteration  or  repair  of  any 
building  or  other  improvement,  such  materials  shall  not 
be  subject  to  attachment,  execution  or  other  legal 
process,  to  enforce  any  debt  due  by  the  purchaser  of 
such  materials,  except  a  debt  due  for  the  purchase 
money  thereof,  so  long  as  in  good  faith  the  same  are 
about  to  be  applied  to  the  construction,  alteration,  or 
repair  of  such  building,  mining  claim,  or  other  improve- 
ment." (California.  Sec.  iig6  C  C  P.)  Compare: 
•  Nevada.     Sec.  3820  General  Statutes,  1885.  • 

Oregon.     Sec.  j68o  II  Hiirs  Codes,  i8g2. 

Washington.     Sec.  i6y^  I  Hilfs  Codes,  i8gi. 

\  261.    Property  in  Foreign  Receiver's  Hands. 

— Personal  pr()j)erty  in  th('  lawful  custody  of  a  foreign 
receiver,  brought  into  a  state  in  the  course  of  business, 
is  subject  to  attachment  under  its  laws  by  a  creditor 
residetit  of  the  state,  and  the  attaching  creditor  has  the 
superior  right.      ( Humphreys  vs.  Hopkins,  81  Cal.  551.) 


ATTACH  mi:  NT  OF   PERSONA].   I'ROI'KR  TV.      262-264 

§   262.     Inventory   of   Property    Request   to 

Garnishee. —  "The  sheriff  must  make  a  lull  inventory 
of  the  property  attached  and  return  the  same  with  the 
writ.  To  enable  him  to  make  such  return  as  to  debts 
and  credits  attached,  he  must  request,  at  the  time  of 
service,  the  party  owing  the  debt  or  having  the  credit 
to  give  him  a  memorandum,  stating  the  amount  and 
description  of  each,  and  if  such  memorandum  be  re- 
fused, he  must  return  the  fact  of  refusal  with  the  writ." 
(California.     Sec.  546  C.  C.  P.)     Compare : 

Idaho.     Sec.  4JII  Revised  Statutes,  iSSy. 

Montana.     Sec.  igi  Code  Civil  Procedure. 

Nevada.     Sec.  3154  General  Statutes,  188^. 

Oregon.     Sees.  148,  1^2  I  HilFs  Codes,  i8g2. 

Utah.     Sec.  41  g  Code  Civil  Procedure. 

Washington.     Sec.  jo8  II  Hiirs  Codes,  i8gi. 

\  263.  Garnishment — Nature  of. — The  attach- 
ment of  debts,  credits  and  other  personal  property  not 
capable  of  manual  delivery  by  service  of  notice  and 
copy  of  the  writ,  is  what  is  generally  termed  garnish- 
ment. Upon  serving  the  same,  the  officer  must  request 
the  person  to  whom  it  is  delivered  to  make  a  statement 
in  response  to  the  garnishment.  It  is  a  custom  with 
officers  to  deliver  with  the  notice  of  orarnishment  a 
printed  blank  for  an  answer,  or  statement.  The  service 
of  garnishment  should  be  promptly  performed,  the 
nature  of  the  kind  of  personal  property  thus  attachable 
being  easily  and  quickly  transferable.  When  served 
upon  a  corporation,  the  notice  should  be  directed  to  the 
corporation  by  its  full  name. 

§  264.    Garnishment  Generally,  in  California. 

— The  provisions  of  law  applicable  in  California  to  the 


II 


§  264     ATTACHMENT  OF  PERSONAL  PROPERTY. 

attachment  of  debts  and  personal  propertN'  in  the  hands 
of  a  third  party,  called  the  garnishee,  are  contained  in 
Sec.  542,  Sub.  5,  Code  of  Civil  Procedure  (Sec.  2j2, 
ante)  and  in  Sees.  543-6,  as  follows : — 

"Sec.  543.  Upon  receiving  information  in  writing 
from  the  plaintiff  or  his  attorney,  that  any  person  has 
in  his  possession,  or  under  his  control,  any  credits  or 
other  personal  property  belonging  to  the  defendant,  or 
is  owing  any  debt  to  the  defendant,  the  sheriff  must 
serve  upon  such  person  a  copy  of  the  writ,  and  a  notice 
that  such  credits,  or  other  property  or  debts,  as  the 
case  may  be,  are  attached  in  pursuance  of  such  writ. 
[Sec.  544  will  be  found  in  Sec.  267  of  this  work, /(?i'/.] 

"Sec.  545.  Any  person  owing  debts  to  the  defend- 
ant, or  having  in  his  possession,  or  under  his  control, 
any  credits  or  other  personal  property  belonging  to  the 
defendant,  may  be  required  to  attend  before  the  court 
or  judge,  or  a  referee  appointed  by  the  court  or  judge, 
and  be  examined  on  oath  respecting  the  same.  The 
defendant  may  also  be  required  to  attend  for  the  pur- 
pose of  giving  information  respecting  his  property,  and 
may  be  examined  on  oath.  The  court  or  judge  may, 
after  such  examination,  order  personal  property,  capable 
of  manual  delivery,  to  be  delivered  to  the  sheriff  on 
such  terms  as  may  be  just,  having  reference  to  any 
liens  thereon  or  claims  against  the  same,  and  a  memo- 
randum to  be  given  of  all  other  personal  i)roi)erty,  con- 
taining the  amount  and  description  thereof. 

"Sec.  546.  .  .  .  To  enable  him  to  make  .  .  . 
return  as  to  debts  and  crtxlits  attached,  hv.  must  request, 
at  the  time  of  service,  the  party  owing  the  debt  or 
having  th(t  credit  to  give  him  a  memorandum,  stating 
the  amount  and  descrijjtion  of  each  ;  and  if  such  memo- 
randum  be  refused,  he   must   return   th(;  fact  of  refusal 


ATTACHMENT  OF   I'ERSONAL  PROI'ERT^'.     §§265,  266 

with  the  writ.  The  party  refusing  to  give  the  memo- 
randum may  be  required  to  pay  the  costs  of  any  pro- 
ceedings taken  for  the  purpose  of  obtaining  information 
respecting  the  amounts  and  description  of  such  debt  or 
credit." 

§  265.    Penalty  for  Failure  to  Disclose.— In 

serving  a  garnishment,  where  the  person  served  re- 
fuses to  give  to  the  officer  the  required  statement  or 
memorandum  of  the  debt  or  of  his  having  the  credit,  it 
is  proper  to  inform  him  of  the  provisions  of  law  (see 
Sec.  264,  ante),  providing  that  he  may  be  required  to 
pay  the  costs  of  any  proceeding  taken  for  the  purpose 
of  obtaining  information  respecting  the  amounts  and 
description  of  such  debt  or  credit. 

In  other  states  provisions  exist  similar  to  those  in 
Cahfornia,  fixing  a  penalty  for  failure  of  the  garnishee 
to  give  the  memorandum  requested  by  the  officer. 

Arizona.     Sec.  84  Revised  Statutes,  i88j. 

Colorado.     Sec.  ij8  Code  Civil  Procedure. 

Idaho.     Sec.  43  n  Revised  Statutes,  i88j. 

Montana.     Sec.  igi  Code  Civil  Procedure. 

Nevada.     Sec.  J154  General  Statutes,  188^. 

Oregon.     Sec.  1^2  I  Hills  Codes,  i8g2. 

Utah.     Sec.  41  g  Code  Civil  P^vcedure. 

Washington.     Sees.  308-g  II  Hill's  Codes,  i8gi. 

\  266.    Examination  of  Defendant  Limited. — 

Under  the  California  provision  for  examination  of  the 
person  garnisheed  {Sec.  ^4^  Code  Civil  P^'ocedure;  Sec. 
264,  ante),  which  provides  that  "the  defendant  may  also 
be  required  to  attend  for  the  purpose  of  giving  informa- 
tion as  to  his  property,"  it  is  held  that  the  defendant  can- 
not be  compelled  to  submit  to  an  examination  as  to  the 


§  267  ATTACHMENT  OF   PERSONAL  PROPERTY. 

condition  and  situation  of  his  property,  nor  can  he  be 
compelled  to  deliver  up  his  property.  i^Ex parte  Rick- 
leton,  5/  Cal.  Ji6.)  The  court  held  that  the  only  sup- 
posed authority  for  such  a  step,  Section  545  of  the 
Code  of  Civil  Procedure,  is  confined  to  proceedings 
against  persons  owing  debts  to  the  defendant,  or  hav- 
ing possession  of  credits  or  other  personal  property  be- 
longing to  the  defendant.  It  is  in  that  section  pro- 
vided in  terms  that  such  persons  may  be  required  to 
submit  to  examination  touching  such  debts  or  such 
property,  and  the  order  to  be  made,  or  which  may  be 
made,  as  the  result  of  such  an  examination,  manifestly 
refers  to  the  disposition  of  property  not  in  the  hands 
or  under  the  personal  control  of  the  defendant,  but  in 
the  possession  or  under  the  control  of  the  garnishee. 
"The  provision  in  that  section,"  says  the  court,  "to  the 
effect  that  the  defendant  may  also  be  required  to  attend 
for  the  purpose  of  giving  information  respecting  his 
property,  does  not  look  to  the  entry  of  an  order  direct- 
ing him  to  surrender  property  in  his  own  possession, 
but  merely  to  give  such  information,  under  oath  or 
otherwise,  as  will  facilitate  the  examination  of  a  g-ar- 
nishee  under  examination." 

When  the  garnishee  denies  that  he  is  indebted  to 
the  judgment  debtor,  neither  the  referee  nor  the  court 
has  power  to  compel  him  to  pay  to  the  sheriff  the 
amount  of  his  alleged  indebtedness,  but  the  court  may 
enter  an  order  authorizing  the  judgment  creditor  to  in- 
stitute an  action  ajrainst  the  "-arnishee  to  determine  the 
question  of  indebtedness.  {Harhnan  vs.  Olvera,^i  Cal. 
SO/.) 

§  267.    Liability   of   Garnishee. — "All    persons 

having  in   their  possession,  or  under  their  control,  any 


ATTACHMENT  OF  I'ERSONAL  PROPERTY.    §§  26'J2i-26(^ 

■credits  or  other  personal  property  belonging  to  the  de- 
fendant, or  owing  any  debts  to  the  defendant  at  the 
time  of  service  upon  them  of  a  copy  of  the  writ  and 
notice,  as  provided  in  the  last  two  sections,  shall  be, 
unless  such  property  be  delivered  up  or  transferred,  or 
such  debts  be  paid  to  the  sheriff,  liable  to  the  plaintiff 
for  the  amount  of  such  credits,  property,  or  debts,  un- 
til the  attachment  be  discharged,  or  any  judgment  re- 
covered by  him  be  satisfied."  [Calif omia.  Sec.  544. 
Code  Civil  Procedure. ) 

A  garnishee  can  only  be  required  to  answer  as  to  his 
liability,  to  the  debtor  defendant,  at  the  time  of  the 
service  of  the  garnishment.  [IsForris  vs.  Burgoyne,  4. 
Cal.  4jg.) 

§  267a.    Property  in  Custody  of  the  Law. — 

Money  in  the  hands  of  the  sheriff,  collected  on  execu- 
tion, is  not  the  subject  of  garnishment,  unless  by  ex- 
press authority  of  law.      (See  Sec.  2Tya,  ante.) 

§  268.    Collection  from  Garnishee. — Debts  and 

credits  due  to  a  defendant,  when  attached,  may  be  col- 
lected by  the  sheriff,  if  the  same  can  be  done  without 
suit;  and  the  sheriff's  receipt  is  a  sufficient  discharge 
for  the  amount  paid.  {Calif oruia.  Sec.  5^7  Code 
Civil  Procedure.)  When  collected,  they  must  beheld 
to  answer  the  judgment. 

§  269.    Garnishment  in  Other  States.^Provi- 

sions  more  or  less  similar  to  those  contained  in  the  pre- 
ceding section  prevail  in  other  states  for  the  attach- 
ment and  disclosure  of  debts,  credits  and  other 
personal  property  in  the  hands  of  third  parties.  (See 
references  below  and  also  Sees.  2^2-^,  ante. )     I  n  some 


§§270,271     ATTACHMENT  OF  PERSONAL  PROPERTY. 

States,  as  in  Arizona  and  Colorado,  statutory  provision 
is  made  for  the  issuance  of  a  separate  writ  of  garnish- 
ment requiring  the  garnishee  to  appear  within  a  certain 
time  or  suffer  judgment  by  default.  (See  Sees.  2jj-^, 
ante. ) 

Arizona.     Sees.  ^2-84  Revised  Statutes,  iSSy. 

Idaho.     Sees,  ^.jog-ii  Revised  Statiites,  iSSy. 

Colorado.     Sees.  ii8~ijg  Code  Civil  Proeedure. 

Montana.     Sees.  1 88-1  go  Code  Civil  Proeedure. 

Nevada.  Sees.  3150,  Sub.  4,  ji^i-4.  General  Stat- 
utes, 188^. 

Oregon.     Sees.  i6j-iyi  I  Hill's  Codes,  i8g2. 

Washington.  Sees,  joo,  Sub.  4,  jo^  jii  II  Hill's 
Codes,  i8gi. 

§  270.  Distinction  between  Debts  and  Cred- 
its.— In  the  statute  prescribing  how  "debts  and 
credits"  may  be  attached,  a  distinction  is  made  be- 
tween them,  and  a  return  showing  levy  upon  one  con- 
stitutes no  lien  upon  the  other.  A  debt  is  money  ow- 
ing by  the  garnishee  to  the  defendant,  which  may  be 
paid  over  to  the  sheriff;  while  credits  are  something 
belonging  to  the  defendant  but  in  the  possession  of  the 
garnishee,  such  as  promissory  notes  which  may  be  de- 
livered up  or  transferred  to  the  sheriff  {Goiv  vs.  Mar- 
shall, go  Cal.  56^.) 

§271.  Garnishment  of  Corporations.^To  ren- 
der the  jjroccss  of  attachment  ('ff(;ctual  against  a  corpo- 
rati(^n  as  garnishee,  the  writ  and  notice;  must  l)e  served 
on  the  prcsidciil,  or  other  head  of  the  same,  or  the  sec- 
notary,  cashier  or  other  managing  agent  thereof  In 
the  case  of  a  banking  corjjoration,  service  of  process  on 
the  teller,  whose  only  duty  is  to  receive  and  pay  out  all 


ATTACHMENT  OF  PERSONAL   I'ROI'ERTV.    §§272-274 

moneys  which  come  into  and  go  out  of  the  bank,  is  not 
sufficient  to  bind  the  corporation.  (^Kennedy  vs.  Hiher- 
nia  Savings  and  Loan  Society,  j8  Cal.  151-^ 

A  savings  bank  cannot  avoid  its  liability  to  pay  over 
the  money  of  its  depositor,  on  a  garnishment  at  the 
suit  of  depositor's  creditor,  on  the  ground  that  its  by- 
laws, assented  to  by  the  depositor,  make  his  pass  book, 
in  which  his  account  is  kept,  transferable  to  order  (  Witte 
vs.  Vincent,  4j  Cal.  J2^)\  for  such  pass  book  is  not  a 
negotiable  instrument  in  a  commercial  sense,  nor  can 
the  agreement  of  the  parties  make  it  so. 

In  Oregon  the  garnishment  is  required  to  be  served 
upon  such  person  or  officer  of  the  corporation  as  a  sum- 
mons is  authorized  to  be  served  upon.  [Sec.  i^g  I 
Hiir  s  Codes,  i8g2.) 

§  272.   Garnishment-  Offset  Allowable. — Where 

a  railroad  company  is  served  with  garnishment  for  the 
purpose  of  attaching  wages  of  an  employe,  and  the 
company  is  liable  for  the  board  and  other  debts  con- 
tracted by  the  employe  in  an  amount  equal  to  the  wages 
due,  the  garnishment  is  ineffectual.  [In  re  Union  Pa- 
cific Railway  Company  vs.  Gibson,  Supreme  Court  of 
Colorado,  N'ov.  ig,  i8go.) 

§  273.    Garnishment  of  Estate  Funds. — Money 

in  the  hands  of  an  administrator  mav  be  cjarnisheed  as 
the  property  of  the  distributee  after  decree  of  distribu- 
tion has  been  made,  but  not  before.  {^Estate  of  Nerac, 
35  Cal.  3g2.) 

\  274.    Stocks  Attachable  by  Garnishment. — 

Stocks  or  shares  which  the  defendant  may  have  in  any 
corporation  or  company,  together  with  the  interest  and 


§§275.276    ATTACHMENT  OF  PERSONAL  PROPERTY. 

profit  thereon,  may  be  attached,  and  if  judgment  be  re- 
covered, be  sold  to  satisfy  the  judgment  and  execution. 
In  Cahfornia  "stocks  or  shares,  or  interest  in  stocks  or 
shares,  of  any  corporation  or  company,  must  be  attached 
by  leaving  with  the  president  or  other  head  of  the  same, 
or  the  secretary,  cashier,  or  other  managing  agent 
thereof,  a  copy  of  the  writ,  and  a  notice  stating  that 
the  stock  or  interest  of  the  defendant  is  attached,  in 
pursuance  of  such  writ."  {Sec.  ^42  Code  Civil  Proce- 
dure.)    Similar  provisions  exist  also  in  other  states. 

Arizona.     Sec.  igo8  Revised  Statutes,  i88j. 

Colorado.     Sec.  100  Code  Civil  Pi'ocedure. 

Idaho.     Sec.  4JO/'  Revised  Statutes,  i88j. 

Montana.     Sec.  186  Code  Civil  Procedtu^e. 

JSFevada.     Sec.  3150  Genei^al  Statutes,  188^. 

Oregon.     Sec.  i^g  I  Hills  Codes,  i8g2. 

Utah.     Sec.  41 S  Code  Civil  Procedure. 

Washington.     Sec.  joo  II  Hills  Codes,  i8gi. 

§  275.  Mortgage  Attachable  by  Garnishment. 
- — Debts  secured  by  mortgage,  like  other  debts,  may  be 
attached  by  garnishment,  but  in  no  other  way,  and  their 
payment  may  be  enforced  under  the  provisions  of  the 
code  relating  to  proceedings  supplementary  to  execution. 
{McGurren  vs.  Garrity,  68  Cat.  566.) 

%  276.     Stocks  Not  Transferred  on  Books.— No 

transfer  of  stock  issued  by  a  corporation  is  good  against 
third  parlies,  under  the  California  Code  provisions,  un- 
less the  transfer  be  made  upon  the  books  of  the  corpo- 
ration (Section  324  Civil  Code).  Therefore,  although 
such  shares  Ik:  sold  and  delivered,  they  may  still  be 
subjected  to  attaclimcnt  and  sale  in  an  action  against 
the  vendor,  if  no  lransf(T  has  been  made  on  the  corpo- 
ration books. 


ATTACHMENT  OF   PERSONAL  I'ROPERTV.    §§277,  278 

Where  shares  of  stock  in  a  corporation  have  been 
regularly  transferred  as  security  for  a  loan,  the  mortga- 
gee is  the  only  proper  garnishee  in  a  suit  against  the 
mortgagor,  and  attachment  on  his  interest  in  the  corpo- 
ration. In  such  a  case  the  corporation  is  no  longer 
privy  to  the  interest  of  the  mortgagor,  which  is  a  mere 
equity  in  the  hands  of  the  mortgagee.  {^Edwards  vs. 
Beugnot,  /  Cal.  159) 

§  277.    When  Garnishment  Is  Not  a  Lien.^ 

Service  of  a  copy  of  the  writ  and  notice  of  garnish- 
ment upon  a  third  party  constitutes  no  lien  on  property 
of  the  defendant  in  the  hands  of  a  third  party,  capa- 
ble of  manual  delivery.  The  California  Code  {Section 
^42  Code  Civil  Procedu7'e ;  Section  2J2  ante)  provides 
one  distinct  method  of  levying  upon  personal  property 
capable  of  manual  delivery,  and  another  equally  distinct 
method  of  levying  upon  personal  property  not  capable 
of  manual  delivery.  That  there  are  different  ways 
pointed  out  to  the  officer  by  the  law,  in  one  or  the 
other  of  which  he  must  act,  according  to  the  nature  of 
the  property  he  is  about  to  seize,  should  not  be  lost 
sight  of.  The  writ  affects  property  only  from  the  time 
of  a  lawful  levy  in  accordance  with  the  statute.  {John- 
son vs.  Gorhain,  6  Cal.  igS-) 

\  278.   Attachable  Interest  of  Lessee  in  Leased 

Property. — A  contract  by  which  A  lets  B  have  a  flock 
of  sheep  which  he  owns,  and  of  which  he  is  to  retain 
the  ownership,  to  keep  for  three  years,  and  by  which  B 
is  to  deliver  to  A  the  wool  sheared  from  the  sheep,  and 
A  is  to  sell  it  and  pay  B  one-half  the  proceeds,  and  by 
which  B  is  to  deliver  to  A,  at  the  end  of  the  term,  the 
sheep,  and  A  is  then  to  divide  with  B  the  increase,  giv- 


§  2  79     ATTACHMENT  O?^  PERSONAL  PROPERTY, 

ing  B  one-half  the  increase  as  compensation  for  his 
services,  does  not  give  B  such  an  interest  in  the  sheep 
or  increase  as  will  support  a  seizure  of  them  under  an 
attachment  against  the  property  of  B.  The  interest  of 
B  in  the  sheep  must  be  reached  by  his  creditors  under 
a  different  proceeding.  ( Tuohy  vs.  Wingfield,  5/  Cal. 
Jig.)  The  proper  procedure  would  have  been  by  gar- 
nishment on  the  owner  of  the  sheep. 

§  279.    Claim  by  Third  Party.— The  numerous 

suits  to  be  found  in  the  court  records  against  sheriffs 
and  constables  would  seem  to  indicate  that  the  ofreatest 
risks  incurred  by  these  officers  in  civil  cases  lie  in  the 
taking  of  property  under  writs  of  attachment  and  exe- 
cution. Where  the  property  belongs  to  the  defendant, 
and  there  is  no  controversy  concerning  its  ownership, 
the  path  of  duty  is  smooth  and  clear.  The  officer  has 
only  to  follow  the  course  pointed  out  by  the  law  to  a 
satisfactory  conclusion.  But  when  the  property  levied 
upon  is  claimed  by  a  stranger  to  the  writ,  the  officer's 
responsibility  begins.  When  the  creditor  appeals  to 
the  courts  for  aid  in  the  collection  of  his  account,  the 
debtor,  as  a  general  rule,  either  succumbs  to  the  inev- 
itable force  of  circumstances  or  assumes  an  attitude  of 
hostility.  If  he  submits  to  a  seizure  and  sale  of  his 
effects,  in  acknowledgment  of  the  justness  of  the  cred- 
itor's claim,  the  officer's  course  is  simple  and  easily 
performed.  If,  on  the  other  hand,  the  debtor  choose 
to  throw  obstacles  in  the  creditor's  way,  the  officer 
finds  himself  beset  with  difficulties  and  dangers.  Trans- 
fers of  ]j(;rs()nal  ])roperty  are  easily  effected,  and,  imder 
the  pressuHi  of  legal  proceedings,  the  whilom  successful 
merchant,  contractor  or  what  not,  has  suddenly  become 
insolvent.      If  the  transfer  has  been  legally  made,  the 


ATTACHMENT  OF  PERSONAL  l•ROPEKT^■.  §  280 

creditor  has  no  redress.  If,  the  requirements  of  the 
law  have  not  been  compHed  with,  concerning  the  deliv- 
ery and  possession  of  the  property,  the  creditor  may 
cause  it  to  be  seized  under  legal  process  and  made  to 
answer  for  the  debt.  Although  the  debtor  may  have 
actually  sold  his  property,  received  the  purchase  money 
for  it,  and  given  written  evidence  to  the  purchaser  of 
the  sale,  yet  in  some  states  the  sale  will  not  stand 
before  the  law  if  there  has  not  been  an  actual  delivery 
of  the  property  and  a  continued  possession  thereof  in 
the  purchaser.  (See  chapter  on  "Fraudulent  Trans- 
fers," Sec.  59/,  post.)  Relying  upon  his  legal  rights, 
which  so  closely  adapt  themselves  to  his  moral  rights 
in  the  matter,  the  creditor  pursues  the  property  and 
claims  his  remedy  in  it.  The  sooner,  then,  that  the 
officer  who  has  levied  upon  the  property  secures  an 
indemnity  bond  with  sureties  upon  whom  he  can  rely 
for  the  payment  of  any  judgment  that  may  be  rendered 
against  him  in  favor  of  the  claimant,  the  easier  will  be 
the  burden  of  his  duties  thereon. 

§  280.    Right  of  Officer  to  Indemnity.— When 

an  attachment  or  execution  is  placed  in  the  hands  of 
an  officer  to  be  executed,  he  may  demand  indemnity  of 
the  plaintiff"  in  the  execution  before  he  can  be  required 
to  seize  property  in  possession  of  third  parties  claiming 
to  be  the  owners,  and  if  the  plaintiff,  upon  demand, 
fails  to  indemnify  the  officer,  and  he  thereupon  returns 
the  writ  nulla  bona,  an  action  for  false  return  cannot 
be  maintained,  even  if  it  should  turn  out  that  the  goods 
so  found  in  the  hands  of  strangers  claiming  to  own 
them,  were  the  goods  of  the  defendant  in  the  writ. 
This  declaration  appears  in  the  opinion  of  the  court  in 
the  case  of   Long  vs.    Neville,   36  Cal.   459,   but  it  is 


§   28  I  ATTACILMEXT  OF  PERSONAL  PROI'ERTV. 

qualified  by  the  further  statement  that  "where  statutes 
exist  providing  for  calling  a  sheriff's  jury  preliminary 
to  demanding  indemnity,  it  may  be  necessary  to  call  a 
jury  before  demanding  the  indemnity,  unless  the  calling 
of  a  jury  be  waived."  An  officer  called  upon  to  serve 
a  precept,  either  by  attaching  property  or  arresting  the 
person,  if  there  be  any  reasonable  grounds  to  doubt 
his  authority  to  act  in  the  particular  case,  has  a  right 
to  ask  for  an  indemnity. 

He  is  not  obliged  to  serve  process  in  civil  actions 
at  his  own  peril,  when  the  plaintiff  in  the  suit  is  pres- 
ent, and  may  take  the  responsibility  upon  himself. 

The  risk  he  is  required  to  run  is  not  for  himself,  but 
for  the  benefit  of  the  attaching  creditor.  If  the  eoods, 
moreover,  as  the  creditor  alleges,  are  the  property  of 
his  debtor  beyond  dispute,  he,  the  creditor,  cannot  be 
injured  by  giving  the  indemnity,  and  if  they  are  not, 
it  is  right  that  he  who,  for  his  own  supposed  advantage, 
insists  on  the  seizure,  should  take  the  consequences  of 
the  act. 

In  Washington  statutory  provision  is  made  for  the 
giving  of  an  indemnifying  bond  to  the  sheriff,  if  he 
require  one,  before  serving  any  civil  process.  ( IVash- 
ington.     Sec.  J28  I  Hill' s  Codes,  i8gi.) 

§  281.  Claim  by  Third  Party  Statutory  Pro- 
visions.—The  procedure  in  cases  where  personal  prop- 
<:rty  attached  is  claimed  by  a  third  party  varies  in  the 
different  states  and  tt-rritories.  In  California  if  the 
property  be  claimed  by  a  writt(;n  claim  verified  by  the 
oalh  of  the  clalinanL,  setting  out  his  Utle  and  right  to 
jj(jssession  and  slating  the  grounds  of  the  title,  the 
sheriff  is  not  bound  to  keep  the  pro[)erty  unless  the 
person  in  whose  favor  the  writ  runs,  on  demand,  indeni- 


ATTACHMENT  OF  PERSONAL  PROPERTY.     §  282 

nify  the  sheriff  against  such  claim  by  "an  undertaking 
by  at  least  two  good  and  sufficient  sureties."  In  Col- 
orado a  court  trial  is  had  as  to  the  right  of  property. 
In  Idaho  the  sheriff  is  to  call  a  jury  of  six  persons,  and 
their  verdict  in  favor  of  the  claimant  justifies  the  officer 
in  releasing  the  property.  In  Montana  and  Nevada, 
if  the  property  be  claimed  under  oath,  the  sheriff  must 
deliver  it  to  the  claimant,  unless  the  plaintiff  gives  a 
good  and  sufficient  indemnity  bond.  In  Oregon  a  jury 
of  six  persons  is  to  be  called  by  the  sheriff,  and  if  their 
verdict  be  in  favor  of  the  claimant,  the  officer  may  still 
proceed  under  the  writ  if  the  plaintiff  give  him  a  suf- 
ficient indemnity  bond.  In  Arizona  and  Washington, 
upon  the  filing  of  the  affidavit  and  a  sufficient  bond  by 
the  claimant,  the  property  must  be  delivered  to  him, 
and  a  court  trial  is  then  had  as  to  the  right  of  property. 

Arizona.     Sees.  57,  ji66~go  Revised  Statutes,  i88y. 

California.     Sees.  5^9,  68g  Code  Civil  Procedure. 

Colorado.     Sees.  2'jii,  2'/jo  Mill's  Ann.  Stats.,  iSgi. 

Idaho.     Sec.  4^14  Revised  Stattites,  i88y. 

Montana.     Sec.  igj  Code  Civil  P^'ocedure. 

Nevada.     Sec.  IJ4  Code  Civil  Procedure. 

Oregon.     Sec.  286  I  Hill's  Codes,  i8g2. 

Washington.     Sees.  4gi-S  J  I  Hilts  Codes,  i8gi. 

\  282.    Sheriff's   Jury — Indemnity. — In    some 

states  it  is  provided  that  if  any  personal  property  at- 
tached be  claimed  by  a  third  person  as  his  property, 
the  sheriff  may  summon  a  jury  to  try  the  validity  of 
such  claim.  Except  in  case  of  statutory  provision  to 
the  contrary,  the  trial  or  right  of  property  by  such  jury 
determines  and  fixes  the  right  of  no  one,  except  the 
right  of  the  officer  to  demand  indemnity,  and  doubtless 
was  intended  for  that  purpose  only. 


§§  283-285    ATTACHMENT  OF  PERSONAL   PROPERTY. 

§  283.    Time  to  Procure  Bond. — The  plaintiff  is 

entitled  to  a  reasonable  time  to  furnish  the  bond,  such 
time  being-  dependent  mainly  upon  the  distance  he  has 
to  go  to  procure  the  sureties,  and  in  this  the  officer 
should  indulge  him  so  far  as  he  can  do  so  with  safety 
to  himself  If  the  plaintiff  or  his  attorney  agree  to 
give  the  bond,  the  plaintiff  is  responsible  in  law  to  the 
officer  from  that  time;  and  if  the  plaintiff  is  financially 
responsible,  the  officer  may  safely  proceed  to  levy,  if 
he  has  not  already  done  so.  It  would  not,  however, 
be  advisable  to  notice  the  property  for  sale  until  the 
receipt  of  the  bond. 

§  284.    Time  a  Bond  Takes  Effect. — A  bond  to 

indemnify  a  sheriff  takes  effect  from  the  time  of  its  de- 
livery. [Buffendeau  vs.  Brooks,  28  Cal.  642.)  But  it 
creates  no  cause  of  action  until  the  sheriff  has  been 
compelled  to  pay  and  has  paid  damages.  {Oaks  vs. 
Scheifferly,  y4  Cal.  478.) 

%  285.    Waiver   of   Sheriff's   Jury. — In  those 

states  where  provision  exists  for  the  summoning  of  a 
sheriffs  jury,  before  calling  a  jury  to  try  the  rights  of 
property  the  officer  should  notify  the  plaintiff  or  his 
attorney  of  the  claim  and  of  his  intention  to  summon 
a  jury,  so  that  he  may,  if  he  wish,  waive  the  calling  of 
the  jury  and  elect  to  give  to  the  officer  an  indemnity 
bond  against  the  claim.  If  the  plaintiff  waive  a  trial 
by  jury,  and  give  the  bond  with  sureties  satisfactory  to 
the  officer,  it  is  the  duty  of  the  latter  to  go  on  and 
make  the  judgment.  The  officer  then  becomes  the 
agciil  of  lh('  ])laintiff,  and  must  depend  upon  him  and 
the  sureties  for  protection  against  any  suit  the  claimant 
may  bring  against  him,  by  reason  of  the  seizure  and 
sale  ol  the  j>ro|K'rt\. 


ATTACHMENT  OF   [>KRSOXAL  FM^OPKRTV.    §§  286,  287 

$  286.    Sheriff's  Jury  No  Protection.— In  the 

absence  of  statutory  provision  otherwise,  if  the  verdict 
of  the  jury  be  against  the  claimant,  he  may  yet  bring- 
his  action  for  trespass  or  replevin. 

If  it  should  be  against  the  plaintiff  in  attachment  or 
execution,  and  he  indemnify  the  officer,  then  the  officer 
is  bound  to  hold  the  goods,  and  the  claimant  must 
bring  his  action  or  lose  his  rights.  If  the  plaintiff  give 
the  bond  of  indemnity,  it  will  only  inure  to  the  benefit 
of  the  owner  of  the  property,  so  far  as  the  consequences 
which  result  from  his  own  acts  are  concerned. 

The  verdict  of  a  sheriff's  jury  is  no  protection  to  the 
officer  in  a  suit  brought  against  him;  and  it  is  held  (in 
Pe7^kms  vs.  Thornburg,  lo  Cal.  igi,  and  Sheldon  vs. 
Loomis,  28  Cal.  I2j)  that  such  a  verdict  is  not  admis- 
sible in  evidence  as  a  defense.  When  an  officer  has 
reason  to  believe  that  the  property  seized  under  attach- 
ment or  execution  belongs  to  a  stranger  to  the  writ,  he 
should  for  his  own  protection  and  in  the  interests  of  all 
others  concerned,  inquire  into  the  ownership  thereof. 

§  287.  Double  Indemnity. — Where  property  was 
seized  under  two  attachments,  and  the  property  was 
claimed  by  a  third  party,  whereupon  both  attaching 
creditors  indemnified  the  sheriff,  who  went  on  and  sold 
it,  and  paid  the  proceeds  to  the  first  attaching  creditor, 
the  amount  not  equaling  his  judgment,  and  afterwards 
the  party  claiming  the  property  obtained  judgment 
against  the  sheriff  for  the  value  of  the  property:  Held, 
that  the  recourse  must  be  had  aofainst  the  first  attach- 
ing  creditor,  for  whose  benefit  the  property  was  sold. 
In  such  case,  the  attaching  creditors  do  not  stand  in  the 
position  of  joint  trespassers,  the  seizure  of  the  second 
being  subject  to  the  first.     The  sheriff  was  the  separate 


§§  288,  289    ATTACHMENT  OF   PERSONAL  PROPERTY. 

agent  of  both  attaching  creditors,  but  in  the  order  stated, 
and  as  he  disposed  of  the  property  to  the  benefit  of  the 
first  alone,  he  must  look  to  him,  and  not  the  second 
attaching  creditor.     {^Davidson  vs.  Dallas,  8  Cal.  22y.) 

§  288.  Replevin  from  Sheriff. — If  attached  per- 
sonal property  in  the  hands  of  the  sheriff  is  claimed  by 
a  third  party,  and  taken  by  writ  of  replevin,  executed 
by  the  coroner,  the  sheriff  should  require  the  sureties 
on  the  replevin  bond  to  justify,  otherwise  he  may  be 
held  liable  for  negligence.  (Noble  vs.  Desmond,  y2 
Cal.  jjo.) 

§  289.  Estoppel  of  Owner  of  Attached  Prop- 
erty.— Where  A,  the  owner  of  property,  represents 
that  certain  property  in  his  possession  belongs  to  B, 
and  that  representation  coming  to  the  ears  of  C,  a 
creditor  of  B,  who  sues  out  an  attachment  against  B, 
and  seizes  the  property:  Held,  that  A  is  estopped  from 
setting  up  a  claim  to  the  property.  (Mitchell  vs.  Reed, 
g  Cal.  204.)  In  so  deciding,  the  court  said:  "If  par- 
ties choose  to  make  untrue  statements,  by  which  others 
are  injured,  they  should  be  estopped  to  unsay  what 
they  have  before  said.  Estoppels,  in  general,  are  odi- 
ous ;  but  in  mercantile  and  ordinary  business  transac- 
tions, where  men  must  trust  to  appearances  and  the 
declarations  of  parties,  because  they  have  no  other 
means  of  information  in  such  cases,  the  courts  have 
been  inclined  to  (extend  the  list  of  estoppels." 

One  who,  with  knowledge  of  all  the  facts  and  circum- 
stances surrounding  the  transaction,  gives  to  the  sheriff 
an  accountable  receipt  for  pr()j)erty  levied  upon  as  the 
property  of  another,  is  estopped  from  afterwards  assert- 
ing Dwnershij)  in  himself,  unless  at  or  before  the  giving 


ATTACHMENT  OF  PERSONAL  PROPERTY.     §§290-292 

of  the  receipt  he  made  known  his  claim  to  the  officer. 
{Blevin  vs.  Freer,  lo  Cal.  IJ2;  DresbacJi  vs.  Minnis, 
45  Cal.  2 2 J.) 

I  290.  Release  of  Attachment. — After  the  attach- 
ment has  been  levied,  the  sheriff  should  release  it  only 
by  order  of  court  or  upon  order  of  the  plaintiff's  attor- 
ney or  upon  the  giving  of  the  statutory  undertaking  by 
the  defendant.  When  real  property  is  affected,  the 
officer  should  record  a  certified  copy  of  the  order  for 
release,  and  a  notice  that  the  property  is  released. 

§  291.    Release  by  Judgment  for  Defendant. 

— "If  the  defendant  recover  judgment  against  the 
plaintiff,  any  undertaking  received  in  the  action,  all  the 
proceeds  of  sales  and  money  collected  by  the  sheriff, 
and  all  the  property  attached  remaining  in  the  sheriffs 
hands,  must  be  delivered  to  the  defendant  or  his  agent." 
(California.     Sec.  ^_$j  Code'  Civil  Procedure.) 

In  case  of  a  dismissal  of  an  action  by  a  justice  of  the 
peace  for  non-appearance  of  the  plaintiff,  the  judgment 
for  defendant  operates  as  a  dissolution  of  an  attach- 
ment, although  the  justice  reinstates  the  case,  and  the 
parties  appear  and  try  it.  (O'Connor  vs.  Blake,  2g 
Cal.  313.) 

§  292.  Release  on  Undertaking  Given. — Statu- 
tory provision  is  made  for  the  release  of  the  attachment 
upon  the  giving  of  a  bond  to  be  taken  by  the  sheriff. 
When  a  sufficient  undertaking  is  taken  by  him,  his- 
duty  in  the  premises  is  discharged,  and  he  has  no  fur- 
ther responsibility  in  the  matter.  (Curiae  vs.  Packard,. 
2g  Cal.  ig4;  also  Preston  vs.  Hood,  64  Cal.  405.) 

In  going  to  make  a  levy  upon  personal  property,  the: 


12. 


§§  293.  294    ATTACHMENT  OF  PERSONAL  PROHERTY. 

officer  will  sometimes  find  it  convenient  to  have  with 
him  a  blank  undertaking  to  prevent  attachment,  and, 
also,  a  blank  undertaking  for  the  release  of  an  attach- 
ment. It  is  not  obligatory  upon  him  to  have  such 
blanks  with  him,  but  much  time  and  annoyance  may 
sometimes  be  saved  by  having  them  at  hand,  where 
the  defendant  wishes  to  retain  the  custody  of  his  prop- 
erty. 

Arizona.     Sec.  ^8  Revised  Statutes,  i88y. 

California.      Sec.  ^40  Code  Civil  Procedure. 

Colorado.     Sees.  1 1 1-2  Code  Civil  Procedure. 

Idaho.     Sec.  4jig  Revised  Statutes,  188'/. 

Montana.     Sees.  ig8-g  Code  Civil  Procedure. 

JSFevada.     Sec.  J148  General  Statutes,  188^. 

Oregon.     Sec.  1^4  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  42'j  Code  Civil  Procedure. 

Washington.     Sec.  ji6  II  Hills  Codes,  i8gi. 

\  293.    Form  of  Undertaking. — A  common  law 

bond,  in  form,  upon  the  prescribed  statutory  conditions, 
given  to  a  sheriff  to  procure  a  discharge  of  goods 
attached,  is  a  sufficient  compliance  with  the  provisions 
of  the  statute.  (Curiae  vs.  Packard,  2g  Cal.  ig4.} 
In  this  case  the  court  decide  that  the  undertakincr  if 
sufficient,  is  to  be  taken  by  the  sheriff  when  the  prop- 
erty has  been  as  well  as  when   it  is  about  to  be  attached. 

§  294.     Sureties  on  Bond  for  Release. — If  the 

def(rndant  desires  to  give  the  statutor)'  undertaking  for 
release  of  the  attachment,  the  officer  should  satisfy 
himself  that  the  sureties  are  able  to  respond  to  the 
obligation  they  assume.  He  should  (juestion  the  per- 
sons who  present  themselves  to  him  as  sureties,  con- 
cerning th(!ir  proper  qualifications,  and  seek  to  secure 
the  plaintiff  as  he  would  himself. 


ATTACHMENT  OF  PERSONAL  PROPERTY.  §  295,  296 

§  295.    Money  Deposited  to  Release  Property. 

— Where  the  defendant  in  an  action,  whose  propert)- 
had  been  attached  by  the  sheriff,  deposited  with  the 
sheriff  a  sum  of  money  in  gold  coin,  in  lieu  of  an  under- 
taking, to  procure  a  release  of  the  property,  and  the 
property  was  thereupon  released,  and  afterwards,  by 
agreement  between  the  parties  to  the  action,  the  money 
was  taken  from  the  sheriff  and  loaned  out  pending  the 
litigation,  and  a  note  drawing  interest  taken  therefor, 
payable  to  plaintiffs  attorney :  Held,  that  after  plaintiff 
recovered  judgment,  the  persons  who  borrowed  the 
money  did  not  hold  it  in  the  character  of  bailees  of  the 
sheriff,  but  that  they  were  mere  debtors,  and  the  money 
in  their  hands  a  mere  debt,  to  be  treated  as  such  on 
proceedings  supplementary  to  execution.  [Hathaway 
vs.  Brady,  26  Cal.  ^81.)  Under  such  conditions  the 
money  ceases  to  be  in  the  custody  of  the  law. 

§  296.    Release  upon  Plaintiff's  Order.— The 

direction  to  release  the  attachment  should  be  in  writing, 
signed  by  the  plaintiff  or  his  attorney.  There  may  be 
circumstances  attendingf  a  case  where  such  direction 
should  come  from  the  plaintiff's  attorney,  and  not  from 
the  plaintiff.  The  plaintiff  may,  through  ignorance, 
divest  himself  of  his  rights  by  causing  a  release  to  be 
precipitately  made ;  and,  hence,  as  a  rule,  it  is  generally 
most  prudent  to  look  to  the  attorney  for  such  instruc- 
tions. In  the  case  of  Perlberg  vs.  Gorham,  10  Cal. 
121,  where  a  partnership  existed  between  two  persons 
in  the  purchase  of  goods,  and  they  subsequently  brought 
suit  to  recover  their  value  from  a  trespasser  who  had 
seized  them,  it  was  held  that  one  partner  is  competent 
to  execute  a  release  in  the  name  of  himself  and  co- 
partner.     But  it  is  not  always  safe  to  recognize  such  a 


§§  297-299    ATTACHMENT  OF  PERSONAL  PROPERTW 

right.  In  the  case  of  Perl  berg  vs.  Gorham,  it,  Cal. 
349,  the  defendant  Gorham,  as  sheriff,  levied  on  goods 
claimed  by  the  plaintiffs.  After  suit  had  been  brought, 
one  of  the  attaching  creditors  procured  a  release  from 
one  of  the  plaintiffs,  executed  in  the  name  of  both,  of 
all  actions,  etc.;  it  was  held  that  if  this  release  was  ob- 
tained by  fraud,  it  was  void,  and  the  sheriff  could  derive 
no  advantage  from  it,  although  he  was  not  implicated 
in  and  knew  nothing  of  the  fraud. 

§  297.    Proceedings  on  Release.— When  an  at 

tachment  on  personal  property  is  released,  the  property 
should  be  returned  to  the  person  from  whom  it  was 
taken.  Where  the  property  has  been  taken  from  the 
defendant,  it  should  be  returned  to  him  or  to  his  a^ent, 
or  to  such  person  as  the  defendant  may,  in  writing,  di- 
rect the  officer  to  deliver  it  to.  The  officer  should  take 
a  receipt  therefor  from  the  person  to  whom  it  is  deliv- 
ered. An  officer  cannot  with  safety  ignore  these  seem- 
ingly unimportant  business  formalities. 

§  298.  Death  of  Defendant  Destroys  Attach- 
ment Lien. — If  the  defendant  die  after  the  levy  of 
an  attachment  upon  his  property  and  before  judgment, 
his  death  destroys  the  lien  of  the  attachment,  and  the 
attached  property  passes  into  the  hands  of  the  admin- 
istrator, to  be  administered  on  in  due  course  of  admin- 
istration.     {Myers  vs.  Mott,  2g  Cal.  351.^ 

\  299.  Release  by  Appeal. — After  judgment  in 
lavor  of  defendant,  the  attachment  is  at  once  and  ipso 
facto  discharged,  under  the  express  provisions  of  Sec- 
li(Mi  553  <>^  the  California  Code  of  Civil  Procedure, 
although  an  apjx-al    be  taken   by  th(;  plaintiff,  on  which 


ATTACHMENT  OF  I'KRSONAL  PROI'ERTV.     §§  3OO-304 

appeal  he  ultimately  obtains  judgment.  An  attachment 
being  merely  a  creature  of  statute,  can  continue  no 
longer  than  the  statute  provides.  {Loveland  vs.  Al- 
vord  C.  Q.  Mg.  Co.,  jS  Cal.  562.) 

\  300.    Liability  for  Failure  to  Release.— After 

an  order  of  court  for  the  release  of  an  attachment,  the 
sureties  on  the  attachment  bond  become  liable  and  the 
possession  by  the  sheriff,  if  retained,  becomes  unlawful. 
{Gardner'-  vs.  Donnelly,  86  Cal.  jdy.) 

^301.    Expense  of  Keeping  Property  Levied 

Upon. — The  sheriff  is  allowed  his  necessary  expenses 
in  keeping  and  preserving  property  seized  on  attach- 
ment or  execution,  the  amount  to  be  fixed  by  the 
court  and  paid  out  of  the  fees  collected  in  the  action. 
{California  SiattUes,  i8gj,  p.  S^Y-) 

^  302.    Sheriff's  Fees  to  be  Paid.^The  officer 

cannot  be  compelled  to  release  property  from  attach- 
ment until  his  fees  are  paid.  {Robinett  vs.  Connolly,  yd 
Cal.  ^6;  Perrin  vs.  McMann,  gy  Cal.  ^2.)  But  where 
levy  has  been  released  by  a  stay  bond,  he  must  demand 
payment  and  offer  to  return  the  property  upon  payment 
of  the  amount  lawfully  due  to  him.  {Sam  Yuen  vs. 
McMann,  gg  Cal.  4g7.) 

\  303.    Change  of  Sheriffs    Fees  on  Release.— 

When  a  sheriff  goes  out  of  office,  holding  attached 
property  in  his  possession,  the  party  wishing  to  release 
must  seek  him  and  pay  his  fees  in  full  up  to  the  time 
of  the  release.     [Perrin  vs.  McMann,  gy  Cal.  ^2.) 

§  304.     Attachment    of   Mortgaged    Personal 

Property. — When  an  officer  is  directed  to  attach  per- 


§  305     ATTACHMENT  OF  PERSONAL  PROPERTY. 

sonal  property  of  such  character  as  may  by  law  be  the 
subject  of  a  valid  mortgage  as  against  third  parties,  he 
should,  before  proceeding  to  levy,  or  as  soon  thereafter 
as  possible,  ascertain  if  the  property  has  been  mort- 
gaged; otherwise  he  may  render  himself  liable  for  seiz- 
ing mortgaged  property  without  first  satisfying  the 
mortgage  claim,  as  he  is  bound  to  take  notice  of  all 
valid  mortoraofes  of  record  made  under  the  statute  au- 
thorizing  mortgages  of  personal  property. 

§  305.    Mortgage  of   Personal  Property.— In 

California  the  following  personal  property  may  be  mort- 
gaged, so  as  to  be  valid  security  as  against  third  par- 
ties without  change  of  possession: — 

"i.    Locomotives,  engines  and    other  rolling  stock 
of  a  railroad. 

"2.   Steamboat  machinery,   the  machinery  used  by 
machinists,  foundrymen  and  mechanics. 
"3.   Steam  engines  and  boilers. 
"4.    Mining  machinery. 
"5.    Printing  presses  and  material. 
"6.   Professional  libraries, 

"7.    Instruments  of  a  surveyor,  physician  or  dentist. 
"8.    Upholstery  and   furniture  used   in   hotels,  lodg- 
ing or  boardino;' houses. 

"9.   Oil  paintings,  pictures  and  works  of  art. 
"10.   (Growing  crops. 

"II.    Vessels  ot  more  than  five  tons'  ])urden. 
"12.    Instruments,    negatives,   fiirniturc  and   fixtures 
of  a  photograph  gallery. 

"13.  The  machinery,  casks,  pipes,  tul)cs  and  uten- 
sils us(;d  ill  the  manufacture  of  wine,  fruit  brandv,  fruit 
syrup  or  sugar. 

"14.    I'ianos  and  organs. 


ATTACHMENT  OK   I'KKSONAL   I'ROPERTV.    §§  306,  307 

"15,    Iron  and  steel  safes. 

"16.  Neat  cattle,  horses,  mules, j'swine  and  sheep, 
and  the  increase  thereof."  {California.  Sec.  2g^^ 
Code  Civil  Procedttr-e. ) 

§  306.  Object  and  Effect  of  Record.  -The  ob- 
ject to  be  attained  by  requiring  the  recording  of  mort- 
gages of  personal  property  is  the  same  as  that  provid- 
ing for  the  registration  of  mortgages  of  real  estate. 
The  same  general  principles  are  alike  applicable  in 
each  case.  The  design  is  to  give  notice  to  the  public 
of  all  existing  incumbrances  upon  real  or  personal 
estate  by  mortgage.  The  recording  of  the  mortgage 
is  therefore  made  by  the  code  the  equivalent  of  an  im- 
mediate delivery  and  continued  change  of  possession, 
and  creditors  and  subsequent  purchasers  or  incum- 
brancers are  bound  by  the  notice  which  it  imparts.  By 
and  under  it,  the  mortgagee  is,  in  law,  in  possession  of 
the  chattels,  and  an  officer  having  an  attachment  or 
execution  against  the  mortgagor,  is  not  authorized  to 
levy  upon  them  without  first  paying  the  mortgage  debt. 

§  307.    Requisites  for  Validity. — "A  mortgage 

of  personal  property  is  void  as  against  creditors  of  the 
mortgagor  and  subsequent  purchasers  and  incum- 
brancers of  the  property,  in  good  faith  and  for  value, 
unless : — ■ 

"  I.  It  is  accompanied  by  the  affidavit  of  all  the 
parties  thereto  that  it  is  made  in  good  faith  and  with- 
out any  design  to  hinder,  delay  or  defraud  creditors. 

"2.  It  is  acknowledged  or  proved,  certified  and  re- 
corded in  like  manner  as  grants  of  real  property." 
(California.     Sec.  2g^y  Civil  Code.) 


§  ^OS  ATTACHMENT  OF  PERSONAL  PROPERTY. 

§  308.    Payment  of  Mortgage  before  Levy.— 

."  Personal  property  mortgaged  may  be  taken  under 
attachment  or  execution  issued  at  the  suit  of  a  creditor 
of  the  mortgagor.  .  .  .  but,  before  the  property 
is  so  taken,  the  officer  must  pay  or  tender  to  the  mort- 
gagee the  amount  of  the  mortgage  debt  and  interest, 
or  must  deposit  the  amount  thereof  with  the  county 
clerk  or  treasurer,  payable  to  the  order  of  the  mort- 
gagee."    (California.     Sec.  2g68-g  Civil  Code.) 

A  transfer  of  property  by  chattel  mortgage,  properly 
executed  and  recorded,  passes  the  title  without  delivery. 
(California.  Sec.  2g^j  Civil  Code.)  The  mortgagee 
is,  in  law,  in  possession  of  the  mortgaged  chattels,  and 
an  officer  having  an  attachment  or  execution  against  the 
mortgagor  is  not  authorized  to  levy  upon  them  without 
first  paying  the  mortgage  debt.  (Berson  vs.  Nunan, 
6 J  Cal.  S50.) 

A  transfer  of  property  by  chattel  mortgage,  executed 
with  the  formalities  of  law  and  recorded,  passes  the 
title,  although  conditional  and  defeasible,  whether  the 
property  be  or  be  not  delivered.  The  rights  of  the 
parties  to  the  mortgage  are  fixed  by  the  code.  They 
are  purely  statutory  rights,  and  as  the  code  declares 
that  such  a  morteaee  is  not  void  as  to  creditors  or 
subsequent  purchasers,  for  want  of  an  actual  and  con- 
tinued change  of  possession,  the  title  of  the  niortgagee 
is  not  affected  for  want  of  it.  {Heyland  vs.  Badger, 
35  Cal.  404.) 

Where,  on  the  trial  of  an  action  for  the  replevin  of 
goods  from  a  d(;f(;ndant  who,  in  answer,  admitted  the 
taking,  but  justified  under  legal  process  against  a  third 
party,  hctid  and  served  by  him  as  sheriff,  it  was  proved 
bv  plaintid  that  ht:  hekl  an  unsatisfied  chattel  mortgage 
of  the  goods,   dul)'   executetl   by  said   third   party,    for 


ATTACHMENT  OF   PP:RS0NAI,   PROI'KRTV.     §§309,  3IO 

tht;ir  purchase  price,  of  which  defendant  had  notice  : 
Held,  that  upon  this  state  of  facts,  and  in  absence  of 
any  evidence  tending  to  justify  the  taking  of  the  goods 
by  defendant,  plaintiff  was  entitled  to  judgment  for 
their  recovery.      [Stringer'  vs.  Davis,  j5  Cal.  2^.) 

§  309.    Liability  for  Wrongful  Levy. — Under 

a  statute  requiring  prior  payment  of  the  mortgage  debt 
before  mortgaged  personal  property  can  be  attached, 
the  officer  is  liable  to  the  mortofaofee  as  for  a  conversion 
if  he  levies  an  attachment  and  appoints  a  keeper  with- 
out complying  with  the  statute,  although  he  does  not 
move  or  otherwise  disturb  the  property.  [Irivin  vs. 
Jl/cDowell,  gi  Cal.  11  g.) 

If  the  officer  seize  such  property  without  payment 
ot  the  mortgage  debt,  the  party  injured  may,  by  action, 
recover  the  amount  which  will  compensate  him  for  all 
the  detriment  proximately  caused  by  the  breach.  The 
law  casts  upon  an  officer  the  duty  or  obligation  of 
paying  to  a  mortgagee  the  amount  of  the  debt  due  the 
mortgagee  before  he,  the  officer,  may  take  the  prop- 
erty, and  therefore  if  he  seizes  such  property  without 
paying,  tendering  or  depositing  the  amount  due,  the 
detriment  proximately  caused  by  such  seizure  is  not  the 
value  of  the  property  seized,  but  the  amount  of  the 
mortgage  debt.      [Wood  vs.  Franks,  ^6  Cal.  21'/.) 

§  310.    Creditor  to  Advance  Payments. — The 

officer  is  not  bound  to  make  the  seizure  unless  the 
attaching  creditor  furnish  him  with  the  requisite  funds 
to  make  the  payment.  A  failure  to  furnish  the  funds 
would  be  a  good  defense  by  the  officer  in  a  suit  against 
him  by  the  attaching  creditor.  If,  however,  the  officer, 
waiving  his  right  to  be  protected,  seizes  the  property 


§3^1  ATTACHMENT    OF    PERSONA!.    PROPERTY. 

without  payment,  tender  or  deposit,  he  assumes  to 
make  good  to  the  mortgagee  the  detriment  caused  by 
the  seizure,  and  the  mortgagee  is  not  left  to  his  action 
of  trover  or  replevin.      (  Wood  vs.  Franks,  56  Cal.  21'/.) 


§   3 


II.    Attachment   of   Growing  Crops.— An 

unripe  growing  crop  is  personal  property  not  capable 
of  manual  delivery,  and  an  attachment  must  be  levied 
upon  it  as  such.  In  the  case  of  Raventas  z^s.  Green, 
57  Cal.  254,  it  is  decided  that  an  attachment  upon  such 
property  in  the  possession  of  the  defendant  is  suffi- 
ciently levied  by  serving  upon  him  copies  of  the  writ 
and  statutory  notice  ;  and  if  the  sheriff  does  nothing- 
further  until  the  crop  is  ripe,  when  he  gathers  it,  there 
is  no  abandonment  of  the  attachment.  In  that  case 
the  court  say  :- — 

"There  is  no  doubt  that  an  unripe  growing  crop  of 
grain  is  property.  It  is  property  subject  to  attachment 
{Code  of  Civil  Procedure,  Sec.  541),  and  is  personal 
property  {Civil  Code,  Sec.  2g^^;  Davis  vs.  McFarlane., 
jy  Cal.  6j8).  And  it  is  personal  property  not  capable 
of  manual  delivery  {Davis  vs.  McFarlaiu\  and  author- 
ities there  cited).  Being  personal  property  not  capable 
of  manual  delivery,  and  being  subject  to  attachment, 
how  is  it  to  be  attached,^  In  the  third  subdivision  of 
.Sec.  542  of  the  Code  of  Civil  Procedure,  it  is  provided 
that  '  personal  property  capable  of  manual  deliver}-  must 
be  attached  by  taking  it  into  custody;'  and  in  the  fifth 
subdivision,  that  'debts  and  credits,  and  other  personal 
property  not  capable  of  manual  delivery,  must  be  at- 
tached l)y  leaving  with  the  person  owing  such  debts, 
or  having  in  his  possession  or  under  his  control  such 
credits  and  other  personal  properly,  or  with  his  agent. 
a  cop\'  of  the  writ    and    ,1  notice    that    the   debts  owing 


ATTACHMENT  OF  PERSONAL  1»R01'ERT^•.  §  3  I  2 

by  him  to  the  defendant,  or  the  credits  and  other  per- 
sonal property  in  his  possession  or  under  his  control 
belonging  to  the  defendant,  are  attached  in  pursuance 
of  such  writ.'  .  .  .  The  purpose  of  the  statute  was, 
as  its  language  indicates,  to  declare  the  manner  in 
which  property  subject  to  attachment  should  be  at- 
tached ;  and  with  respect  to  personal  property,  pro- 
vides that  such  property,  when  capable  of  manual 
delivery,  must  be  attached  by  the  officer  taking  it  into 
his  custody,  but  that  where  not  capable  of  manual 
delivery,  must  be  attached  by  leaving  with  the  person 
having  it  in  his  possession  or  under  his  control,  or  with 
his  agent,  a  copy  of  the  writ  and  a  notice  that  it  is 
attached  in  pursuance  of  such  writ.  Personal  property 
not  capable  of  manual  delivery,  which  is  in  the  hands 
of  the  defendant  to  the  attachment  suit,  is  as  much 
liable  to  attachment  as  if  in  the  hands  of  a  third  person." 
Although  the  manner  in  which  growing  crops  are  to 
be  levied  upon  is  thus  plainly  pointed  out — viz.,  by  gar- 
nishment— yet  it  would  seem  (from  the  nature  of  the 
property,  its  exposed  condition,  and  the  fact  that  it  may 
be  subject  to  injury  or  destruction  by  maliciously  in- 
clined persons  where  it  is  protected  merely  by  the  serv- 
ice of  a  writ),  not  only  proper  but  advisable  on  the 
part  of  the  officer  and  plaintiff  to  place  a  keeper  in 
charge  of  the  property.  As  the  plaintift"'s  attorney  is 
not  authorized  to  direct  the  sheriff  to  incur  such  an  ex- 
pense, the  direction  should  be  given  by  the  plaintiff  or 
an  agent  lawfully  authorized  to  act  in  such  matters  tor 
him.     (See  Sec.  2^2,  ante.) 

§  312.  Growing  Crops  Mortgaged— Continu- 
ance of  Lien. — "The  lien  of  a  mortgage  on  a  grow- 
ing crop  continues  on  the  crop  after  severance,  whether 


§313  ATTACHMENT  OF  I'ERSOiXAL  PROPERTY. 

remaining  in  its  original  state  or  converted  into  another 
product,  so  long  as  the  same  remains  on  the  land  of 
mortgagor."     {^California.     Sec.  2g'/2  Civil  Code.) 

In  Nevada  the  lien  of  a  mortgage  upon  a  growing 
crop  continues  until  after  the  crop  is  harvested  and 
threshed  or  baled  or  otherwise  prepared  for  market  and 
delivered  to  the  mortgagee  or  his  order.  {Sec.  26^5 
General  Statutes,  188^. ) 

§  313  Farming  on  Shares— Attachable  In- 
terest,— Where  two  persons  who  are  tenants  in  com- 
mon, the  one  farming  the  land  of  the  other,  under  an 
agreement  by  which  the  former  is  to  give  the  owner  of 
the  land  a  part  of  the  crop  raised  for  his  own  use,  a 
contract  may  be  entered  into  between  them,  by  which 
the  one  who  performs  the  work  becomes  divested  of  an 
attachable  interest  until  the  conditions  of  the  contract 
have  been  complied  with.  In  the  case  of  Howell  vs. 
Foster,  65  Cal.  169,  the  court  say: — 

"There  is  no  doubt  that  where  one  man  farms  land 
of  another  under  an  agreement  by  which  he  is  to  give 
the  owner  a  part  of  the  crop  raised  for  its  use,  he  and 
the  owner,  in  the  absence  of  a  stipulation  providing 
otherwise,  become  tenants  in  common  of  the  crops 
raised.  But  it  is  just  as  clear  that  the  agreement  be- 
tween the  parties  may  be  so  framed  as  to  secure  to  the 
owner  of  \\\v.  land  the  ownership  of  the  product  until 
tht:  pertonnance  of  a  certain  stated  condition.  (tVent- 
7L'ort/i  vs.  Miller,  ^j  Cal.  g;  Andrew  vs.  Newcomb,  j2 
N.  y\  ^ig;  Leiuis  vs.  Lyman,  22  Pick,  ^jy;  Ponder  vs. 
Rhea,  j2  Ark.  4j^;  Smith  vs.  Atkins,  18  Vt.  461.) 
in  the'  jjresent  case  the  j)arties  expressly  agreed  that 
all  ol  the  Lorain  raised  011  the  land  bv  Mayfield  should 
be  delivered  lo   the   plaintiff  and   remain   his   |)r()perty, 


ATTACHMENT  OF  PERSONAL  PROPERTY.    ?§  3  I  4,  ^l^ 

and  in  no  way  subject  to  the  disposal  of  Mayfield  until 
all  of  such  advances  as  the  plaintiff  may  have  made 
him  had  been  satisfied,  and  he  had  thereupon  received 
from  the  plaintiff  his  share  of  the  grain,  which  plaintiff 
bound  himself  to  deliver.  Until  all  this  happened,  all 
of  the  grain,  by  the  express  contract  of  the  parties,  was 
to  be  and  remain  the  property  of  the  plaintiff,  and  in 
no  way  subject  to  the  disposal  of  Mayfield.  That  it 
was  competent  for  the  parties  so  to  provide  has  already 
been  shown,  and  having  so  provided,  it  results  that 
Mayfield  had  no  attachable  interest  in  the  grain  at  the 
time  of  the  levy  of  the  writs  in  question.  '  It  is  a  fun- 
damental principle,'  says  Drake  on  Attachment,  Sec. 
245,  'that  an  attaching  creditor  can  acquire  no  greater 
right  in  attached  property  than  the  defendant  had  at 
the  time  of  the  attachment.  If,  therefore,  the  property 
be  in  such  a  situation  that  the  defendant  has  lost  his 
power  over  it,  or  has  not  yet  acquired  such  interest  in 
or  power  over  it  as  to  permit  him  to  dispose  of  it  ad- 
versely to  others,  it  cannot  be  attached  for  his  debt.' 
See,  also,  authorities  cited  in  support  of  the  text,  and 
Tuohy  vs.  Wingfield,  52  Cal.  319." 

§  314.  Attachment  of  Crop  after  Sever- 
ance.— An  attachment  upon  a  crop  after  severance  is 
levied  by  taking  the  property  into  the  possession  of  the 
officer ;  but  if  the  crop  is  still  subject  to  the  lien  of  a 
valid  crop  mortgage,  the  provision  requiring  payment 
or  tender  of  the  mortgage  debt  to  the  mortgagee  is  ap- 
plicable.     [California.     Sees.  2g^^,  2g6g  Civil  Code.) 

§  315.    Attachment   of   Pledged    Property.— 

Under  the  California  Code  provisions  (see  Sees.  232, 
216,  ante),  it  is  held  that  while  the  interest  of  a  pledgor 


^    Sl6  ATTACHMENT  OF  PERSONAL  PROPERTV. 

in  the  property  pledged  is  subject  to  attachment  and 
may  be  reached  in  the  hands  of  the  pledgee,  yet  this 
can  only  be  done  by  serving  and  enforcing  a  garnish- 
ment on  the  pledgee,  and  not  by  a  seizure  of  the  pledge. 
{Treadwell  vs.  Davis,  ^4  Cal.  601.)  Property  pledged 
is  thus  held  to  be  property  not  capable  of  manual  de- 
livery. It  will  be  noticed,  however,  that,  under  the 
present  provision,  the  persons  garnisheed  and  also  the 
defendant  may  be  examined  under  oath,  pending  the 
attachment,  and  "the  court  or  judge  may,  after  such 
examination,  order  personal  property,  capable  of  man- 
ual delivery,  to  be  delivered  to  the  sheriff  on  such 
terms  as  may  be  just,  having  reference  to  any  liens 
thereon  or  claims  against  the  same."  ( Calif oi'nia. 
Sec.  ^4^  Code  Civil  Procedure.) 

In  Arizona  it  is  expressly  provided  that  "where  the 
defendant  has  an  interest  in  personal  property,  but  is 
not  entitled  to  the  possession  thereof,"  a  levy  is  made 
by  garnishment.  {Sees.  igo6,  ^^  Revised  Statutes, 
1887.) 

In  Colorado,  after  payment  by  plaintiff  of  the  amount 
due  the  pledgee,  the  property  must  be  delivered  to  the 
sheriff  by  the  garnishee.  {Sec.  ij^  Civil  Code,  Acts 
1887,  p.  137.)^ 

%  316.    Pledge  of  Goods    Rights  of  Pledgee.— 

Under  the  California  Practice  [Sees.  ^42,  544-^,  ^88, 
Code  Civil  Procedure),  while  the  interest  of  the  pledgor 
of  property  is  subject  to  execution,  yet  this  cannot  be 
done  by  seizure  of  the  pledge,  but  only  by  enforcing  a 
garnishment  on  the  pledgee,  (  Treadwell  vs.  Davis,  j4 
Cal.  601.) 

When  pledged  property  is  allowed  to  go  back  into 
th*'  possession  of  the  pledgor,  it  is  subject  to  attach- 


ATTACHMENT  OF   PERSONAL  I'ROPERTV.     §^31/,  318 

ment  by  his  creditors.  {Salinas  City  Bank  vs.  Graves, 
79  Cal.  ig2.) 

Personal  property  in  the  hands  of  a  bailee  may  be 
attached,  all  rights  of  the  bailee  being,  however,  pre- 
served. [Hiwiphreys  vs.  Hopkins,  Si  Cal.  351.)  See 
also  Section  315. 

§  317.    Prior  Liens  Must  Be  Satisfied.— An  ofifi- 

cer  cannot  take  property  belonging  to  the  defendant  in 
the  writ,  from  the  possession  of  a  third  party  who  has 
a  lien  upon  the  property,  without  first  satisfying  the 
claim  of  the  lien.  This  principle  applies  to  all  valid 
subsisting-  liens  dependent  upon  possession,  whether 
such  liens  originate  in  the  common  law  or  are  statutory. 
When  the  officer  finds,  therefore,  that  the  property 
which  he  is  instructed  to  attach  is  subject  to  any  such 
lien  for  repairs,  storage,  feed  and  pasturage,  board  and 
lodging  or  the  like,  he  should  notify  the  plaintiff  in  at- 
tachment and  decline  to  seize  the  property  unless 
money  is  advanced  sufficient  to  release  the  lien. 

§  318.  Liens  upon  Personal  Property — Cali- 
fornia.— {a)  For  Repairs. — "A  person  who  makes,  al- 
ters or  repairs  any  article  of  personal  property,  at  the 
request  of  the  owner  or  legal  possessor  of  the  property, 
has  a  lien  on  the  same  for  his  reasonable  charges  for 
work  done  and  materials  furnished,  and  may  retain  pos- 
session of  the  same  until  the  charges  are  paid." 

{b)  For  Safe  Keeping,  etc. — "Every  person  who, 
while  lawfully  in  possession  of  an  article  of  personal 
property,  renders  any  service  to  the  owner  thereof  by 
labor  or  skill  employed  for  the  protection,  improvement, 
safe  keeping  or  carriage  thereof,  has  a  special  lien 
thereon,   dependent   on    possession,   for    the    compen- 


§  3^8  ATTACHMENT    OF    PERSONAL    PROPERTY. 

sation,  if  any,  which  is  due  to  him  from  the  owner  for 
such  service;  and  livery,  or  boarding,  or  feed-stable 
proprietors  and  persons  pasturing  horses  or  stock  have 
liens  dependent  on  possession  for  their  compensation 
in  caring  for,  boarding  or  pasturing  such  horses  or 
stock." 

(c)  For  Purchase  Price. — "One  who  sells  personal 
property  has  a  special  lien  thereon,  dependent  on  pos- 
session, for  its  price,  if  it  is  in  his  possession  when  the 
price  becomes  payable,  and  may  enforce  his  lien  in  like 
manner  as  if  the  property  was  pledged  to  him  for  the 
price." 

{d)  Factor  s  Lien. — "A  factor  has  a  general  lien, 
dependent  on  possession,  for  all  that  is  due  to  him  as 
such,  upon  all  articles  of  commercial  value  that  are  in- 
trusted to  him  by  the  same  principal." 

{e)  Banker s  Lien. — ^"A  banker  has  a  general  lien, 
dependent  on  possession,  upon  all  property  in  his  hands 
belonging  to  a  customer,  for  the  balance  due  to  him 
from  such  customer  in  the  course  of  the  business." 

(y*)  Shipmaster s  Lien. — "The  master  of  a  ship  has 
a  general  lien,  independent  of  possession,  upon  the  ship 
and  freightage,  for  advances  necessarily  made  or  liabil- 
ities necessarily  incurred  by  him  for  the  benefit  of  the 
ship,  but  has  no  lien  for  his  wages." 

{g)  Seaman  s  Lien.—"  Tha  mate  and  seaman  of  a 
ship  have  a  general  lien,  independent  of  possession, 
upon  th(;  ship  and  freightage,  for  their  wages,  which  is 
superior  to  every  other  lien." 

(h)  Officers  Lien. — "An  officer  who  levies  an  at- 
tachment or  execution  upon  personal  property  acquires 
a  sjMtcial  lien,  dependent  on  possession,  upon  such 
property,  which  authorizes  him  to  hold  it  until  the  pro- 
cess is  discharge ;(1   or  satisfied,  or  a  judicial  sale  of  the 


ATTACHMENT  OF  PERSONAL  PROPERTV.    §§319-32! 

property  is  had."  {California.  Sees.  304^-^2  Civil 
Code. ) 

§  319.     Liens   in    Other   States.— A  reference 

is  also  here  given  to  statutory  liens  upon  personal  prop- 
erty, existing  in  other  states. 

Arizona.     Sees.  22 jg,  228g-gi  Rev.  Stats.,  i88y. 

Coloraelo.  Sees.  140J,  28^4-6,  4274,  4325  Mills' 
Ann.  Statutes,  i8gi. 

Idaho.     Sees.  344^-g  Revised  Statutes,  i88y. 

Montana.  Sees.  206-8,  ijg4  General  Laws;  Com- 
piled Statutes,  188^,  p.  loj^. 

Nevada.     Sees.  382 S,  3828,  3832  Gen.  Stats.,  188^. 

Oregon.     II  Hill's  Codes,  i8g2,  pp.  i^g6-8. 

Utah.     Sees.  2g^4-'/  Compiled  Laws,  1888. 

Washington.     Sees.  i6gg,  lyo^  I  Hill's  Codes,  i8gi. 

§  320.    Lien  for  Cutting  Timber,  etc. — Under 

the  California  statute,  a  person  who  cuts  timber  and 
manufactures  it  into  ties  under  employment  of  the 
owner  of  the  land,  and  who  piles  the  same  and  remains 
in  possession,  has  a  lien  thereon  for  the  sum  due  him 
thereon,  and  he  may  retain  possession,  as  against  an 
officer  with  execution  or  attachment  against  the  owner 
of  the  land,  until  his  charges  are  paid.  {Douglass  vs. 
Me  Far  land,  g2  Cat.  6^6.) 

§  321.  Waiver  of  Lien. — When  a  person  who 
has  goods  in  his  possession  states  to  one  who  is  about 
to  take  possession  of  the  same,  by  a  legal  process,  that 
he  has  no  charges  on  the  goods,  this  is  a  waiver  of  his 
lien  for  charges,  if  any  he  had.  {Blaekman  vs.  Pierce, 
23  Cal.  sog7) 


13 


s  ^■ 


ATTACHMENT  OP^  PERSONAL  ^R01'ERT^•. 


§  322.      Sale    before    Judgment    Perishable 

Property. — Statutory  provision  is  made  for  the  sale 
of  attached  property  before  judgment  in  cases  where 
the  property  is  perishable,  or  its  keeping  would  be  at- 
tended with  great  expense,  or  the  interest  of  the  par- 
ties would  be  subserved  by  such  sale.  In  some  states 
an  order  of  court  is  required  in  some  cases,  and  the 
statutory  manner  of  noticing  and  conducting  the  sale  is 
usually  the  same  as  of  similar  property  on  execution. 

In  California,  "if  any  of  the  property  attached  be 
perishable,  the  sherifl"  must  sell  the  same  in  the  manner 
in  which  such  property  is  sold  on  execution.  The  pro- 
ceeds, and  other  property  attached  by  him,  must  be  re- 
tained by  him  to  answer  any  judgment  that  may  be 
recovered  in  the  action,  unless  sooner  subjected  to  exe- 
cution upon  another  judgment  recovered  previous  to 
the  issuing  of  the  attachment."  {California.  Sec.  ^^y 
Code  Civil  Procedure.)  Notices  of  the  time  and  place 
of  sale  should  be  posted  in  three  public  places  of  the 
township,  or  city  (as  the  case  may  be),  where  the  sale 
is  to  take  place,  for  such  time  as  may  be  reasonable, 
considering  the  character  and  condition  of  the  property. 

"Whenever  property  has  been  taken  by  an  officer 
under  a  writ  of  attachment,  and  it  is  made  to  appear 
satisfactorily  to  the  court,  or  a  judge  thereof,  that  the 
interest  of  the  parties  to  the  action  will  be  subserved 
by  a  sale  thereof,  the  court  or  judge  may  order  such 
property  to  be  sold  in  the  same  manner  as  property  is 
sold  und(!r  an  execution,  and  the  proceeds  to  be  depos- 
ited in  the  court,  to  abide  the  judgment  in  the  action." 
( California.     Sec.  ^48  Code  Civil  Procedure. ) 

All  sales  of  property  under  execution  must  be  made 
at  auction  to  the  highest  bidder,  between  the  hours  of 
nine  in  the  morninfr  and  five   in   the  afternoon.      Sales 


ATTACHMENT  OF  PERSONAL  PROPERTY.     §  322 

by  order  of  the  court  must  be  made  by  posting  written 
notice  in  three  public  places  in  the  township  or  city 
where  the  sale  is  to  take  place,  for  not  less  than  five 
nor  more  than  ten  days,  except  where  the  time  of  sale 
is  fixed  in  the  order  of  the  court.  (California.  Sees. 
6g2,  6g^  Code  Civil  Procedu7^e. ) 

An  officer  selling  without  giving  the  statutory  notice 
forfeits  $500  to  the  aggrieved  party,  in  addition  to  his 
actual  damages.      {California.     Sec.  6gj  C.  C  P.) 

Arizona.     Sees.  5g-6i  Revised  Statutes,  i88y. 

Colorado.     Sec.  loy  Code  Civil  Procedure. 

Idaho.     Sec.  4312  Revised  Statutes,  i88y. 

Montana.     Sec.  ig2  Code  Civil  Procedure. 

Nevada.     Sec.  ^155  General  Statutes,  188^. 

Oregon.     See.  i^j  I  Hiirs  Codes,  i8g2. 

Utah.     Sec.  420  Code  Civil  Procedure. 

Washington.     See.  joj  II  Hills  Codes,  i8gi. 


CHAPTER    XI. 


ATTACHMENT    OF    REAL    PROPERTY. 


§  323 
§  324 
§  325 
§  326 
§  327 
§  328 
§  329 
§  330 
§  331 
§  332 
§  333 
§  334 
§  335 
§  336 
§  337 
§  338 


Attachment  of  Real  Property — Arizona. 

California  and  Idaho. 

Colorado. 

Montana. 

Nevada. 

Oregon. 

Utah. 

Washington. 

Service  on  Occupant. 

Absence  of  Occupant  of  Premises. 

Failure  to  Find  Record  Owner. 

Posting  Copy  on  Real  Estate. 

What  Constitutes  Complete  Attachment. 

Lien  on  Real  Estate,  When  Takes  Effect. 

Sufficiency  of  the  Return. 

How  Attachment  May  Be  Released. 


§  3  2  3.    Attachment  of  Real  Property    Arizona. 

— The  levy  of  the  writ  of  attachment  is  made  by  filiiig- 
a  copy  of  the  writ,  together  with  a  description  of  the 
property  attached,  with  the  county  recorder,  and  in- 
dorsing such  l(;vy  upon  the  original  writ.  The  officer 
m-r.d  not  go  upon  the  ground.  {Sees.  §^,  /905  Revised 
Statutes,  iSSy.)  Sees.  21  24  of  the  statute  relating  to 
executions  arc  also  applicable  to  the  levy,  and  are  to 
b(-  found  in  Sec.  233  of  this  work,  ante. 


ATTACHMENT  OF  RF:AL  PROPERTY.    §§324,   325 

§,  324.  California  and  Idaho. — The  manner  of 
levying  the  writ  of  attachment  upon  real  property  is 
as^follows : — 

"  i.  Real  property,  standing  upon  the  records  of  the 
county  in  the  name  of  the  defendant,  must  be  attached 
by  filing  with  the  recorder  of  the  county  a  copy  of  the 
writ,  together  with  a  description  of  the  property  at- 
tached, and  a  notice  that  it  is  attached,  and  by  leaving 
a  similar  copy  of  the  writ,  description,  and  notice  with 
an  occupant  of  the  property,  if  there  is  one ;  if  not, 
then  by  posting  the  same  in  a  conspicuous  place  on  the 
property  attached. 

"2.  Real  property,  or  any  interest  therein,  belonging 
to  the  defendant  and  held  by  any  other  person,  or 
standing  on  the  records  of  the  county  in  the  name  of 
any  other  person,  must  be  attached  by  filing  with  the 
recijrder  of  the  county  a  copy  of  the  writ,  together  with 
a  description  of  the  property  and  a  notice  that  such 
real  property  and  any  interest  of  the  defendant  therein, 
held  by  or  standing  in  the  name  of  such  other  person, 
(naming  him)  are  attached,  and  by  leaving  with  the 
occupant,  if  any,  and  with  such  other  person  or  his 
agent,  if  known  and  within  the  county,  or  at  the  resi- 
dence of  either,  if  within  the  county,  a  copy  of  the  writ, 
with  a  similar  description  and  notice.  If  there  is  no 
occupant  of  the  property,  a  copy  of  the  writ,  together 
with  such  description  and  notice,  must  be  posted  in  a 
conspicuous  place  upon  the  property," 

Calif or7iia.     Sec.  542  Code  Civil  Procedure. 

Idaho.     Sec.  4^0'j  Revised  Statutes,  i88j. 

§  325.  Colorado. — Real  property  standing  upon 
the  records  of  the  county  in  the  name  of  the  defendant, 
is  attached  by  filing  a  copy  of  the  writ,  together  with  a 


§§  326-329       ATTACHMENT  OK  REAL  PROPERTY. 

description  of  the  property  attached,  with  the  recorder 
of  the  county.  Real  property,  or  any  interest  therein, 
belonging  to  the  defendant  and  held  by  any  person,  or 
standing  upon  the  records  of  the  county  in  the  name  of 
any  other  person  (but  belonging  to  the  defendant),  is 
attached  by  leaving  with  such  person,  or  his  agent,  a 
copy  of  the  writ  and  a  notice  that  such  real  property 
(giving  a  description  thereof)  and  any  interest  therein 
belonging  to  the  defendant,  are  attached  pursuant  to 
such  writ,  and  filing  a  copy  of  such  writ  and  notice 
with  the  recorder  of  the  county.  [Sec.  104  Code  Civil 
Procedure. ) 

§  326.  Montana. — Real  property  is  attached  by 
filing  with  the  recorder  a  copy  of  the  writ,  together 
with  a  description  of  the  property  and  a  notice  that  it 
is  attached.  Any  interest  belonging  to  the  defendant, 
but  standing  in  the  name  of  another  person,  is  attached 
in  a  similar  manner,  without  posting  or  service  upon 
the  occupant.     {Sec.  186  Code  Civil  Pi^ocedure.) 

§  327.  Nevada. — Real  property  is  attached  by 
leaving  a  copy  of  the  writ  with  the  occupant  thereof,  or 
if  there  be  no  occupant,  by  posting  a  copy  in  a  conspic- 
uous place  thereon,  and  filing  a  copy,  together  with  a 
description  of  the  property  attached,  with  the  recorder 
of  the  county.  (Sec.  128  Civil  Procedure  Act;  Gen- 
eral Statutes,  188^,  Sec.  3150.) 

\  328.  Oregon,  -  Real  property  is  attached  by  leav- 
ing with  the  occupant  thereof,  or  if  there  be  no  occu- 
]>ant,  in  a  consj)icuous  place  thereon,  a  coj))  of  the  writ 
certified  by  the  sh(^riff.     (Sec.  14^  1 1  fills  Codes,  i8g2.) 

\  329.  Utah. —  in  this  TcrritorN  the  writ  is  levied 
in  the  same  manner  as  in  California.  ("See  Sec.  J24, 
ante;  Sec  415  Utah  Code  of  Civil  Procedure.) 


ATTACHMENT  OF  REAL  PROPERTY.       §§330-332 

§  330.  Washington. — Real  property  is  attached 
by  filing  a  copy  of  the  writ,  together  with  a  description 
of  the  property  attached,  with  the  county  auditor  of  the 
county  in  which  the  attached  real  estate  is  situated. 
(Sec.  joo  II  Hills  Codes,  i8gi.) 

§  331.    Service  on  Occupant. — Under  a  statute 

requiring  service  of  a  copy  of  the  writ  upon  the  occu- 
pant, if  any,  as  in  California  and  Oregon  (Sees.  ^24, 
J28  ante),  it  is  not  necessary  to  go  to  the  land  if  an  oc- 
cupant can  be  served  with  a  copy  of  the  writ,  description 
and  notice,  without  going  to  the  land.  1 1  is  not  necessary 
to  serve  the  defendant  with  a  copy  of  the  writ,  descri[)- 
tion  and  notice,  except  he  be  the  occupant  of  the  land 
attached.  A  person  may  be  an  occupant  of  real  estate 
although  there  be  no  buildings  upon  it.  He  may  oc- 
cupy the  bare  land  for  the  storage  of  hay,  or  any  other 
commodity.  If  he  be  an  occupant  in  any  capacity,  he 
is  entitled  to  notice  of  the  levy,  and  a  service  upon  him 
will  be  a  service  upon  an  occupant  within  the  law. 
The  service  of  the  writ,  description  and  notice  upon  an 
occupant  (if  there  is  one)  is  made  by  personally  deliv- 
ering to  and  leaving  the  copy  with  the  occupant.  (See 
also  Sec.  JJ2,  post.) 

§  332.    Absence  of  Occupant. — When  the  statute 

requires  service  of  a  copy  of  the  writ  upon  the  "occu- 
pant of  the  property,  if  there  be  one,"  otherwise,  post- 
ing of  the  papers,  if  the  officer  finds  no  occupant  "easily 
discoverable"  or  "visibly  occupying  the  property"  at 
the  time  of  his  visit,  he  should  make  the  levy  by  post- 
ing without  delay,  although  there  be  on  the  property  a 
dwelling  house  apparently  tenanted.  (Davis  vs.  Baker, 
72  Cal.  494.) 


§§  333~335       ATTACHMENT  OF  REAL  PROPERTY. 

§  333.    Failure  to  Find  Record  Owner.— When 

the  person,  who  is  not  the  defendant,  and  in  whose 
name  the  property  stands  on  the  records,  is  not  in  the 
county,  and  has  no  agent  in  the  county,  and  neither  he 
nor  any  agent  of  his  has  a  residence  in  the  county,  and 
the  service  contemplated  in  the  statute  cannot  thus  be 
made,  the  attachment  will  not  for  that  reason  be  inval- 
idated, but  such  facts  should  be  set  out  in  the  return 
made  by  the  officer  on  the  writ. 

§  334.    Posting  Copy  on  Real  Estate. — If  there 

is  no  fence  or  building  upon  the  land  attached,  the 
posting,  when  required  by  the  statute,  may  be  done  by 
setting  a  post  or  stake  in  the  ground  and  attaching 
thereto  the  copy  of  the  writ,  description  and  notice. 

§  335.  What  Constitutes  Complete  Attach- 
ment.^— To  complete  the  service  and  create  a  lien,  all 
the  acts  required  by  law  must  be  performed.  Neither 
act,  by  itself,  will  amount  to  a  service  of  the  attach- 
ment and  create  a  lien  on  the  property.  The  per- 
formance of  all  these  acts  is  essential  to  create  a  lien, 
and  the  omission  of  either  act  is  fatal  to  the  creation  of 
the  lien.  ( Wheaton  vs.  Neville,  ig  Cat.  44;  Main  vs. 
'J^appence,  42  Cal.  20g.)  When  tht;  statute  requires 
service  upon  the  occupant  or  posting  upon  the  prem- 
ises, the  levy  is  incomplete  and  ineffectual  unless  such 
re^quirement  be  complied  with.  [Afaskell  vs.  Barker, 
gg  Cal.  642;  Watt  vs.  Wrig/it,  66  Cal.  202. )  Hut,  in 
addition  to  this,  the  requisite  acts  should  be  performed 
in  the  order  in  which  they  are  named  in  the  code;  that 
is  to  say,  under  the  California  j:)racticc;  the  filing  of  a 
copy  with  the  recorder  must  precede  the  service  on  an 
orcupaiit  ())■  1I1C  posting  on  the  premiscis. 


ATTACHMEx\T  OF  REM.  I'ROl'ERTY.       §336,  T^T^J 

n  Wheaton  vs.  Neville,  ante,  the  court  said  that 
afi«:r  the  return  of  the  writ  the  sheriff  has  no  authority 
to  take  any  proceedings  for  the  completion  of  the 
attachment,  which  he  has  previously  omitted.  Its  effi- 
cacy, as  a  warrant  of  authority  to  him,  is  limited  to  acts 
performed  while  it  remains  in  his  possession. 

:   336.    Lien   on    Real    Estate,  When    Takes 

Effect. — The  lien  of  an  attaching  creditor  of  real  es- 
tate takes  effect  immediately  upon  the  levy  of  the 
attachment,  and  a  deposit  of  a  copy  of  the  writ,  together 
with  a  description  of  the  land  attached,  with  the  county 
recorder ;  that  is,  as  soon  as  all  the  statutory  require- 
m^rnts  have  been  complied  with.  {Ritter  vs.  Scannell, 
II  Cat.  2jg.) 

Under  the  old  law,  in  California,  the  service  on  the 
occupant  or  posting  on  the  property  was  required  to 
be  done  before  filing  with  the  recorder.  The  practice 
is  reversed  under  the  present  law. 

Such  lien  cannot  be  diverted  by  the  failure  of  the 
sheriff  to  make  a  proper  return  of  the  writ. 

Our  statute  prescribes  the  manner  in  which  real  es- 
tate may  be  attached,  but  contains  no  express  provision 
requiring  that  all  the  acts  necessary  to  a  valid  levy 
shall  be  set  out  in  the  return  ;  nor  can  such  a  rule  be 
sustained.  (See  Sec.  jjy,  post.)  The  deposit  in  the 
recorder's  office  of  a  copy  of  the  writ,  with  a  descrip- 
tion of  the  property  attached,  is  sufficient  to  operate 
as  notice  of  the  lien  to  third  parties.  [Ritter  vs.  Scan- 
7ielL  II  Cat.  2jg.) 

§  ^2)7-    Sufficiency  of  the  Return. — If  the  return 

of  the  sheriff  certifies  generally  that  he  attached  certain 
rea]  property,  and  further  specifies  certain  acts  which 
art  insufficient  to  make  a  valid  levy,  the  general  return 


§  ;^;^S  ATTACHMENT  OF  REAL  I'ROPERTW 

of  service  is  sufficient  to  charge  a  subsequent  purchaser 
with  notice  of  the  omitted  facts,  if  the  service  was  in 
fact  complete.  To  support  an  execution  sale,  the 
omitted  facts  may  be  shown  by  parol  evidenee  of  the 
officer,  which  evidence  must  be  clear  and  satisfactory. 
{Brusie  vs.  Gates,  80  Cal.  462.) 

When  the  statute  requires  that  papers  be  posted  "in 
a  conspicuous  place  on  the  premises,"  a  return  showing 
a  posting  "on  the  premises"  is  prima  facie  sufficient 
to  support  the  levy.     (Davis  vs.  Baker,  y2  Cal.  4g4.) 

I  338.    How  Attachment  May  Be  Released. — 

Until  the  year  1876  there  was  no  method  prescribed 
by  statute  in  California  for  the  release  of  an  attachment 
upon  real  estate  on  the  records  of  the  county  in  which 
the  property  was  situated.  At  the  session  of  the  Leg- 
islature in  that  year,  a  clause  was  added  to  Sec.  559 
of  the  Code  of  Civil  Procedure,  providing  that  "when- 
ever an  order  has  been  made  discharg-ing  or  releasing 
an  attachment  on  real  property,  a  certified  copy  of  such 
order  may  be  filed  in  the  offices  of  the  county  recorders 
in  which  the  notices  of  attachment  have  been  filed,  and 
be  indexed  in  like  manner."  It  then  became  quite 
generally  the  custom,  among  sheriffs  and  constables,  to 
release  attachments  upon  real  property  by  filing  with 
the  county  recorder  a  certified  copy  (certified  by  the 
officer)  of  the  order  of  plaintiff's  attorney  to  release  the 
attachment ;  and  in  the  case  of  Smith  vs.  Robinson,  64 
Cal.  387,  the  Supreme  Court  held  that  a  plaintiff,  with- 
out order  of  court,  may  direct  the  sheriff  to  release  real 
propcTty  attached.      Sec  also  : 

Idaho.     Sec.  4J24  Revised  Statutes,  iSSy. 

Oregon.      Sec.  /5/  /  Hills  Codes,  /8g2. 

Washington.     Sec.  j2/  I J  I  fill  s  Codes,  iSgi. 


CHAPTER    XII. 


EXECUTION — GENERALLY. 


§  339*  Property  and  Rights  Subject  to  Execution. 

§  340.  How  Levy  Is  Made,  Generally. 

§  341.  Within  What  Time  Execution  May  Issue. 

§  342.  Same  Limit  in  Foreclosure  Cases. 

§  343.  Execution  after  Time  Limited — Recall. 

§  344.  Transcripts  from  Justices'  Courts. 

§  345.  Execution  after  Death  of  a  Party. 

§  346.  Execution  before  Entry  of  Judgment. 

§  347.  Receipt  of  Writ. 

§  348.  Writ  Cannot  Be  Received  on  Sunday. 

§  349.  What  the  Writ  Must  Require. 

§  350.  Delay  in  Service  of  Writ  Inexcusable. 

§  351.  Penalty  for  Neglect  to  Levy. 

§  352.  Void  and  Voidable  Writs. 

§  353.  Irregularities  in  Writ  or  Proceedings. 

§  354.  Execution — When  Void. 

§  355«  When  Voidable. 

§  356.  When  Amendable. 

§  357-  Irregular  Writ — Duty  of  Officer. 

§  358.  Sales  When  Valid  and  When  Void. 

§  359-  Writ  Not  Open  to  Collateral  Attack. 

§  360.  When  Sheriff  May  Levy  on  Real  Property. 

§  361.  Judgment  Set  Aside  alter  Levy. 

§  362.  Staying  Execution. 

§  363.  Sheriff  Cannot  Sell  When  Stay  Is  Ordered. 

§  364.  Quashing  Execution. 

§  365.  How  Writ  Is  Executed. 

§  366.  Levy  of  Execution  in  California. 


§  339 


EXECUTION GENERALLY. 


§  367- 

§  368. 

§  369- 

§  370- 

§  371- 

§  372- 

§  373- 

§  374- 

§  375- 

§  376. 

§  377- 

§  378. 

§  379- 

§  380. 

§  381. 

§  382. 

§  383- 

§  384- 

^  385- 

S  386. 

§  387- 

§  388. 

§  389- 

§  390- 

^  391- 

§  392. 

§  393- 

§  394- 

§  395- 

§  396. 

f^  397- 

^  398. 

Levy  in  Other  States. 

Levy  of  Execution — Proceedings  Upon. 

Oregon  and  Washington.  ^ 

How  Sale  Should  Be  Conducted. 

Penalty  for  Selling  without  Notice. 

Sale  after  Return  Day — ^When  Valid. 

Postponement  of  Sale. 

Resale  Where  Bidder  Refuses  to  Pay. 

The  Title  the  Purchaser  Secures. 

Judgment  Payable  in  Money  Only. 

Application  of  Proceeds — Conflicting  Attachments. 

Conflicting  Process  from  Different  Courts. 

Payment  into  Court — Disobedience  of  Void  Order. 

Senior  and  Junior  Writs. 

Payment  of  Proceeds  of  Sale. 

Surplus  to  be  Returned  to  Defendant. 

Death  of  Defendant  after  Levy. 

Computation  of  Interest  on  Judgment. 

Return  of  Writ. 

Necessity  of  Prompt  Return. 

Proper  Filing  of  Return. 

Return — Time  Suspended  by  Injunction. 

Stay  of  Proceedings  Extends  Time. 

Return  in  Foreclosure  Cases. 

Effect  of  Insolvency  Proceedings. 

Foreclosure  of  Mortgages  and  Other  Liens. 

Execution  against  Corporation  for  Fine. 

Justices'  Court  Executions. 

Power  of  Justice  over  His  Judgments. 

Enjoining  Justice's  Judgment. 

Execution  to  Constable — Levy  by  Sheriff". 

Decisions. 


|i  339.  Property  and  Rights  Subject  to  Exe- 
cution. All  |)r()pcrty  of  the  judomcnt  debtor,  not  ex- 
pressly by  law  made  exempt  from  execution,  is  subject 
to  execution  and  forced  sal(^  The  principle  is  laid 
down  in  the  California  Code  of  Civil  Procedure  {Sec. 
688)    as    follows:    "All    iL^oods,   chatt<'ls,     mon(;ys    and 


EXECUTION GENERALLY.  §§340,34! 

Other  property,  both  real  and  personal,  or  any  interest 
therein  of  the  judgment  debtor,  not  exempt  by  law,  and 
all  property  and  rights  of  property  seized  and  held  un- 
der attachment  in  the  action,  are  liable  to  execution." 

Similar  provisions  exist  in  other  states  under  their 
codes  or  statutes  on  the  subject. 

Arizona.     Laws  of  i88g,  p.  jg,  Sec.  8. 

Idaho.     Sec.  4477  Revised  Statutes,  i88y. 

Montana.     Sec.  jig  Code  Civil  Procedure. 

Nevada.     Sec.  J241  General  Statutes,  188^. 

Oregon.     Sec.  282  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  ^dy  Code  Civil  Procedure. 

Washington.     Sec.  4yg  II  Hills  Codes,  i8gi. 

§  340.    How  Levy  Is  Made,  Generally.— The 

sheriff  must  execute  the  writ  "by  levying  upon  a  suffi- 
cient amount  of  property,  if  there  be  sufficient,  collect- 
ing or  selling  the  things  in  action,  and  selling  the  other 
property  and  paying  to  the  plaintiff  or  his  attorney  so 
much  of  the  proceeds  as  will  satisfy  the  judgment." 
{California.  Sec.  6gi  Code  Civil  Procedure.)  In 
other  states  similar  provisions  prevail.  For  manner 
of  making  levy,  see  Chapters  XIII  and  y^W,  post. 

Idaho.     Sec.  4481  Revised  Statutes,  i88y. 

Montana.     Sec.  jji  Code  Civil  Procedure. 

Nevada.     Sec.  222  Code  Civil  Procedure. 

Oregon.     Sec.  28 j  I  Hilts  Codes,  i8g2. 

Utah.     Sec.  ^yi  Code  Civil  Procedure. 

Washington.     Sec.  4g6  II  Hills  Codes,  i8gi. 

§  341.    Within   What   Time    Execution   May 

ISSUe.^ — Under  the  California  practice,  the  party  in 
whose  favor  judgment  is  given,  may,  at  any  time  within 
five  years  after  the  entry  thereof,  have  a  writ  of  execu- 


§§  342,  343  EXECUTION GENERALLY. 

tion  issued  for  its  enforcement.  This  applies  to  Supe- 
rior and  Justices'  Courts.  In  all  cases  other  than  for 
the  recovery  of  money,  in  the  Superior  Court,  the  judg- 
ment may  be  enforced  or  carried  into  execution  after 
the  lapse  of  five  years  from  the  date  of  its  entry,  by 
leave  of  the  court,  upon  motion,  or  by  judgment  for 
that  purpose,  founded  upon  supplemental  pleadings. 
{Sees.  68 1,  68^,  goi  Code  of  Civil  Procedure.)  In  Or- 
egon the  time  is  fixed  at  ten  years,  and  in  Montana, 
six  years.  In  the  other  states  named  below  the  five- 
year  limitation  prevails. 

Arizona.     Statutes  i8gi,  p.  ^§. 

Colorado.     Ads  i8gi,  p.  24^. 

Idaho.     Sees.  44^0,  4474  Revised  Statutes,  i88y. 

Montana.     Sees.  ji2,  J4g  Code  Civil  Procedure. 

Nevada.     Sees.  J2jj,  3580  General  Statutes,   188^. 

Oregon.     Sec.  2g2  C.  C  P.  as  amended,  i8gj. 

Utah.     Sees.  560,  ^64  Code  Civil  Procedure. 

Washington.    Sees.  462-4, 1544 II  Hill's  Codes,  i8gr. 

\  342.    Same   Limit  in  Foreclosure  Cases. — 

The  statute  limiting  the  time  for  issuing  execution 
upon  a  judgment  to  five  years  after  its  entry,  applies 
to  judgments  rendered  in  suits  to  foreclose  a  mortgage 
or  other  lien  equally  as  to  mere  personal  judgments. 
(Stout  vs.  Macy,  22  Cal.  647;  Dor  land  vs.  Hanson,  81 
Cal.  202.) 

i  343.  Execution  after  Time  Limited — Re- 
call.— If  an  order  be  made  granting  an  execution  after 
the  lapse  of  the  statutory  limit,  such  order  will  be  an- 
nulled on  certiorari.  {Cortes  vs.  Superior  Court,  86 
Cal.  274.) 

When  an  execution  has  been  improperly  issued  after 


EXECUTION — GENERALLY.  §§  344,   345 

the  expiration  of  the  time  allowed  by  law  for  its  issu- 
ance, the  court  may  recall  the  same  and  order  the 
sheriff  to  refund  money  collected  thereon  by  him. 
{McMann  vs.  Superior  Court,  7^  Cal.  /06.) 

§  344.    Transcripts  from  Justices'  Courts. — 

The  filing  and  docketing  of  a  transcript  of  a  judgment 
rendered  by  a  justice  of  the  peace  in  the  office  of  the 
clerk  of  the  county,  does  not  empower  the  clerk  of  the 
court  in  which  it  is  filed  and  docketed  to  issue  an  exe- 
cution on  the  same  after  five  years  have  elapsed  from 
the  date  of  its  rendition,  {^Keriis  vs.  Graves,  26  Cal. 
156.) 

§  345.    Execution  after  Death  of  a  Party. — 

"  Notwithstanding  the  death  of  a  party  after  the  judg- 
ment, execution  thereon  may  be  issued,  or  it  may  be 
enforced  as  follows: — 

"i.  In  case  of  the  death  of  the  judgment  creditor, 
upon  the  application  of  his  executor,  or  administrator, 
or  successor  in  interest, 

"2.  In  case  of  the  death  of  the  judgment  debtor,  if 
the  judgment  be  for  the  recovery  of  real  or  personal 
property,  or  the  enforcement  of  a  lien  thereon."  (Cal- 
if ornia.     Sec.  686  Code  Civil  Procedure. ) 

"If  execution  is  actually  levied  upon  any  property  of 
the  decedent  before  his  death,  the  same  may  be  sold 
for  the  satisfaction  thereof;  and  the  officer  making-  the 
sale  must  account  to  the  executor  or  administrator  for 
any  surplus  in  his  hands."  (California.  Sec.  150^ 
Code  Civil  Procedure. ) 

In  Arizona  execution  may  issue  after  the  death  of 
the  defendant  only  in  actions  for  the  recovery  of  real 
or  personal  property,  or  for  the  enforcement  of  a  lien 
thereon. 


§§  34^'  347  EXECUTION GENERALLY. 

Arizona.     Sec.  6,  p.  j8,  Statutes,  i88g. 
Colorado.     Sec.  2^yo  Mills  Ann.  Stats.,  i8gi. 
Idaho.     Sec.  44^5  Revised  Statutes,  i88y. 
Montana.     Sec.  jry  Code  Civil  Procedure. 
Nevada.     Sec.  J2jg  General  Statutes. 
Oregon.     Sec.  281  I  Hilts  Codes,  i8g2. 
Utah.     Sec.  ^6^  Code  Civil  Procedure. 
Washington.     Sec.  4^2  II  Hill's  Codes,  i8gi. 

\  346.    Execution  before  Entry  of  Judgment. 

— An  execution  issued  upon  a  valid  judgment  is  suffi- 
cient authority  to  the  sheriff  to  make  a  sale  of  lands. 
In  the  case  of  Los  Angeles  Bank  vs.  Ray  nor,  61  Cal. 
145,  it  was  urged  that  the  record  showed  that  the  judg- 
ment was  not  entered  when  the  execution  was  issued, 
but  the  court  held  that  it  was  not  necessary  that  it 
should  have  been;  that  the  enforcement  of  a  judgment 
does  not  depend  upon  its  entry  or  docketing;  that  these 
are  merely  ministerial  acts,  the  first  of  which  is  required 
to  be  done  for  putting  in  motion  the  right  of  appeal 
from  the  judgment  itself,  and  of  limiting  the  time 
within  which  the  right  may  be  exercised  or  in  which  the 
judgment  may  be  enforced,  and  the  other,  for  the  pur- 
pose of  creating  a  lien  by  the  judgment  upon  the  real 
property  of  the  debtor.  But  "neither  is  necessary  for 
the  issuance  of  an  execution  which  has  been  duly  ren- 
dered. Without  docketing  or  entry,  execution  may  be 
issued  on  the  judgment,  and  land  levied  upon  and  sold 
(Hastings  vs.  Cunningham,  jg  Cal.  144):  and  the  deed 
executed  by  the  sheriff,  in  fulfillment  of  the  sale,  not 
only  proves  the  sale,  but  also  estops  the  defendant  from 
controvctrting  the  title  acc|ulr("d  by  it." 

§  347.     Receipt  of  Writ— The  receipt  of  a  writ  by 
the  officer  dales   from   the  time  he  indorses   it  as  re- 


EXECUTION GENERALLY.  §§  348,   349 

ceived.  A  writ  may  be  handed  to  a  sheriff  and  he  may- 
refuse  to  "receive"  it  until  his  fees  for  service  be  paid. 
Before  "receiving"  the  writ  and  indorsing  upon  it  the 
time  of  its  reception,  the  officer  should  examine  it  to 
satisfy  himself  that  it  is  regular  on  its  face.  For  it  may 
sometimes  happen,  in  the  hurry  of  issuing  a  writ,  that 
some  feature  essential  to  its  validity  may  have  been 
omitted  by  the  clerk,  and  the  omission  have  passed  un- 
noticed by  the  person  to  whom  it  was  delivered. 

§  348.    Writ  Cannot  Be  Received  on  Sunday. 

— In  the  absence  of  statutory  authority,  a  writ  of  at- 
tachment or  execution,  placed  in  the  sheriff's  hands  on 
Sunday,  cannot  be  officially  received  by  him  on  that 
day.  It  can  only  be  considered  officially  in  his  hands 
when  Sunday  has  expired,  (Whitney  vs.  Butterfield, 
J  J  Cal.  SSS-)     See  also  Sec.  21  j  ante. 

\  349.    What  the  Writ  Must   Require.— The 

writ  of  execution  issued  out  of  the  Superior  Court  must 
be  issued  in  the  name  of  the  people,  sealed  with  the 
seal  of  the  court,  and  subscribed  by  the  clerk,  and  be 
directed  to  the  sheriff,  and  it  must  intelligibly  refer  to 
the  judgment,  stating  the  court,  the  county  where  the 
judgment  roll  is  filed,  and  if  it  be  for  money,  the 
amount  thereof  and  the  amount  actually  due  thereon, 
and  if  made  payable  in  a  specified  kind  of  money  or 
currency,  the  execution  must  also  state  the  kind  of 
money  or  currency  in  which  the  judgment  is  payable. 
(California.     Sec.  682  Code  Civil  Procedure.) 

Arizona,  Stats.  i88g,  p.  jy,  Sec.  2. 

Idaho,  Sec.  44J1  Revised  Statutes,  i88y. 

Montana,  Sec.  jij  Code  Civil  Procedure. 

Nevada,  Sec.  J2j4  General  Statutes,  1885. 


14 


§  350  EXECUTION GENERALLY. 

Oregon,  Sec.  2y6  I  Hills  Codes,  i8g2. 
Utah,  Sec.  ^6i  Code  Civil  Procedure. 
Washington,  Sec.  46'j  II  Hi  Its  Code,  i8gi. 

§  350.    Delay  in  Service  of  Writ  Inexcusable. 

— The  terse  maxim,  "Delays  are  dangerous,"  finds  sig- 
nificant application  in  nearly  all  duties  of  the  sheriffs  and 
constables.  It  conveys  an  admonition  which  should 
never  be  lost  sight  of  from  one  year's  end  to  another. 
The  evil  of  procrastination  has  subjected  many  an 
officer  to  loss,  and  they  who  are  subject  to  it  as  a 
habit  must  prove  unfitted  for  the  discharge  of  the  im- 
portant duties  that  devolve  upon  them  as  officers. 
Some  pertinent  suggestions  on  this  point  are  to  be 
found  in  the  decision  quoted  in  Sec.  26,  ante. 

An  illustration  in  point  (and  there  are  many  more  on 
record  in  the  courts)  may  be  found  in  the  case  of  Howe 
vs.  Union  Insurance  Co.,  42  Cal.  528,  wherein  the 
plaintiff  was  subjected  to  a  loss  of  $1,465,  by  reason  of 
the  neglect  of  an  officer  to  serve  a  garnishment  under 
an  execution  which  had  been  placed  in  his  hands. 
Howe  commenced  an  attachment  suit  against  one 
McCann,  and  garnisheed  money  of  McCann's  in  the 
defendant's  hands,  and  afterwards  recovered  judgment 
and  issued  execution  to  the  sheriff.  The  officer  went 
to  the  office  of  the  insurance  company  for  the  purpose 
of  collecting  the  money.  The  secretary  of  the  com- 
pany admitted  having  the  money,  but  did  not  pay  it 
over.  The  sheriff  did  not  lev^y  the  execution,  suppos- 
ing that  the  money  would  be  paid  in  a  day  or  two. 
Before  any  further  sttq)  had  been  taken,  and  withm  less 
than  four  months  from  the  time  when  the  attachment 
was  issued  and  served,  proceedings  were  commenced 
to    have    McCanii  dcciarcd   a    bankrui)t.      At   that  time 


EXECUTION GENERALLY.  §§  35  I,  352 

the  bankrupt  law  provided  that  all  attachments  upon 
mesne  process  within  four  months  before  the  proceed- 
ings in  bankruptcy,  should  be  thereby  dissolved,  in  case 
the  defendant  in  the  attachment  be  declared  a  bank- 
rupt. Under  that  provision  it  is  clear  that  if  the  exe- 
cution had  been  levied  upon  the  fund  before  the  pro- 
ceedings in  bankruptcy  were  commenced,  he  would 
have  acquired  a  lien  upon  the  fund,  which  would  not 
have  been  divested  by  the  proceedings  in  bankruptcy. 
As  it  was,  the  money  went  to  the  assignee  in  bank- 
ruptcy, and  Howe  was  obliged  to  take  merely  his  pro  rata 
with  the  other  creditors.  The  sheriff's  proper  course  in 
the  premises  was  to  have  served  a  garnishment  upon 
the  insurance  company,  and  demanded  possession  of 
the  money. 

§  351.     Penalty  for  Neglect  to  Levy.— "If  the 

sheriff  to  whom  a  writ  of  execution  is  delivered  neg- 
lects or  refuses,  after  being  required  by  the  creditor  or 
his  attorney,  to  levy  upon  or  sell  any  property  of  the 
party  charged  in  the  writ  which  is  liable  to  be  levied 
upon  and  sold,  he  is  liable  to  the  creditor  for  the  value 
of  such  property."     {California.     Sec.  ^i 80  Pol.  Code.) 

\  352.  Void  and  Voidable  Writs.— Before  mak- 
ing levy,  the  officer  should  satisfy  himself  by  exam- 
ination of  the  writ  that  it  is  regular  on  its  face.  The 
decisions  of  the  courts  differ  widely  as  to  the  respon- 
sibility of  an  officer  in  executing  void  and  voidable 
writs.  If  a  writ  is  not  regular  on  its  face,  he  may 
return  it  to  the  party  who  delivered  it  to  him,  who 
must  take  it  for  correction  to  the  officer  who  issued  it, 
if  the  error  is  such  that  correction  can  be  made.  A 
writ  is  not  regfular  on  its  face  if  it  is  not  issued  in  the 


5  353  EXECUTION (lENERALLY. 

name  of  the  people,  nor  (if  a  Superior  Court  writ)  if  it 
has  no  seal.  The  word  "seal"  includes  an  impression 
of  the  seal  required  to  be  used  upon  the  paper  alone 
as  well  as  upon  wax  or  a  wafer  affixed  thereto.  If  the 
writ  is  subscribed  by  a  deputy  clerk  and  not  b)'  his 
principal,  it  does  not  comply  with  the  law,  which  pro- 
vides that  it  must  be  subscribed  by  the  clerk.  Ex- 
ecutions that  are  not  regular  on  their  face  are  liable 
to  be  vacated ;  and,  although  irregular  and  voidable  in 
some  instances,  where  they  are  issued  upon  a  valid 
judgment,  the  officer  cannot  refuse  to  make  a  levy. 

§  353.    Irregularities  in  Writ  or  Proceedings. 

— When  an  execution  is  placed  in  the  sheriff's  hands, 
he  is  not  bound  to  inquire  whether  there  is  a  judgment 
to  support  it,  or  whether  the  execution  corresponds 
exactly  with  the  judgment.  If  it  be  regular  on  its  face, 
it  is  his  duty  to  execute  it.  But,  although  "a  sheriff  or 
other  ministerial  officer  is  justified  in  the  execution  of 
and  must  execute  all  process  and  orders  regular  on 
their  face  and  issued  by  competent  authority,  whatever 
may  be  the  defect  in  the  proceedings  upon  which  they 
were  issued"  {California.  Sec.  41  Sy  Political  Code), 
yet,  if  he  know  of  any  irregularity  in  those  proceedings, 
he  will  put  himself  in  jeopardy  the  moment  he  pro- 
ceeds to  execute  the  writ.  The  assurance  of  protection 
to  the  officer  implied  in  the  section  here  quoted  is  to 
be  found  in  nearly  all  works  that  treat  upon  or  refer  to 
the  duties  of  ministerial  officers,  and  yet  there;  are 
perhaps  but  few  such  officers  who  have  not  at  .some 
time  or  other  found  themselves  in  the  position  of  party 
defendant  in  vexatious  and  expensive;  suits,  by  blindly 
relying  up(jn  th^.-  uncjualifiixl  promise  contained  therein. 
No  legislative  assurance;  of  protection   to  an  officer  lor 


I 


KXKcu  rioN — c;enkrai.i,\'.         §§  354^35^^ 

serving-  process  illegally  issued  can  divest  a  party  ag- 
grieved by  reason  of  such  service  from  his  right  to  seek 
his  remedy  in  the  courts  aofainst  the  officer.  After  an 
officer  has  been  brought  into  court  in  an  action  against 
him  for  taking  property  under  an  illegal  process,  he 
may  or  may  not  be  able  to  justify  himself  and  avert 
the  penalties  prescribed  for  willful  wrongdoers,  but  his 
justification  will  then  have  come  too  late  to  shield  him 
from  the  annoyances  and  expense  of  a  defense.  (See 
also  Sees.  ^6,  204,  J5-?,  377 •) 

§  354.  Execution — When  Void. — Executions  not 
under  seal,  issued  from  a  court  which  has  been  abol- 
ished, or  is  not  of  competent  jurisdiction,  or  upon  a 
void  judgment,  or  upon  a  judgment  against  an  admin- 
istrator, or  after  the  death  of  the  judgment  debtor,  or 
after  an  appeal  and  stay,  instanced  by  the  court  as  prob- 
able examples  of  void  executions.  {Hunt  vs.  Loucks, 
38  Cal.  372.) 

%  355.  When  Voidable. — If  an  execution  directs 
the  levy  for  more  monev  than  the  iudo^ment  calls  for, 
it  is  not  for  that  reason  void,  but  only  voidable.  Ex- 
ecutions which  have  been  issued  according  to  the 
established  course  of  practice,  and  are  not  so  erroneous 
that  they  cannot  be  amended,  are  not  void.  {Hunt  vs, 
Loucks,  J 8  Cat.  372.) 

§  356.  When  Amendable. —  If  an  execution  calls 
for  too  much  money,  it  will  not  be  set  aside,  but 
amended,  so  as  to  agree  with  the  judgment,  upon  the 
application  of  the  parties  to  it,  or  either  of  them. 
{Hunt  vs.  Loucks,  38  Cal.  372.) 

An  execution  which  is  not  issued  in  the  name  of  the 


^357  EXECUTION— GENERALLY. 

people,  or  directed  to  the  sheriff,  is  amendable,  and 
therefore  not  void,  but  only  voidable,  and  a  sale  under 
it  is  valid.     [Hibberd  vs.  Smith,  50  Cal.  5//.) 

§  357.    Irregular  Writ— Duty  of  Officer.— If  an 

irregular  or  imperfect  execution  is  amendable,  it  is  not 
void,  but  only  voidable,  and  it  is  the  duty  of  the  sheriff 
to  serye  and  return  it.  ( Van  Cleave  vs.  Bticher,  yg 
Cal.  600.) 

The  court  has  no  power  to  make  an  order  directing 
a  sheriff  to  enforce  an  execution  by  levying  on  a  par- 
ticular piece  of  propertv.      {^Eraser  vs.  Thrift,  50  Ca,l. 

476.) 

The  plaintiff,  in  an  action  of  ejectment,  relied  upon 
an  execution  sale,  to  which  neither  he  nor  the  defend- 
ant was  a  party.  The  execution  called  for  $695  more 
than  the  judgment,  but  corresponded  with  it  in  other 
respects :  Held,  that  the  execution  was  not  void,  but 
voidable  only,  and  the  sale  therefore  valid.  {Hunt  vs. 
Loucks,  j8  Cal.  j'/2.) 

If  the  execution  calls  for  the  amount  of  the  judgment 
in  the  court  below,  and  for  the  costs  of  an  appeal  also, 
it  is  not,  for  that  reason,  irregular.      Id. 

A  sale  made  under  a  valid,  though  erroneous  judg- 
ment, which  has  not  been  reversed  or  set  aside,  is  v^alid. 
(Moore  vs.  Martin,  j8  Cal.  428.) 

If  an  officer  receives  an  execution,  and  he  knows 
that  the  judgment  has  been  satisfied,  he  cannot  levy 
thereunder. 

If  an  (-xecution  correctly  refers  to  a  judgment,  in 
such  manner  as  to  identify  it,  it  is  sufficient  to  justify 
the  sheriff  in  (enforcing  it,  even  if  it  contains  an  error 
in  reciting  thr  day  on  which  the  judgment  had  been 
rendered,      {/''ranklin  vs.  Merida,  50  Cal.  28g.) 


EXECUTION GENERALLY.  §§  358-362 

§  358.    Sales— When  Valid  and  When  Void. 

— Sales  to  a  bona-fide  purchaser  under  voidable  execu- 
tions are  valid,  though  the  executions  be  afterwards 
set  aside,  but  sales  under  void  executions  are  invalid 
and  pass  no  title,  even  to  a  bona-fide  purchaser. 

§  359.  Not  Open  to  Collateral  Attack. — Exe- 
cutions which  are  merely  voidable  cannot  be  attacked 
collaterally  even  by  the  parties  to  them,  much  less  by 
strangers.      {Hunt  vs.  Loucks,  j8  Cal.  J72.) 

I  360.  When  Sheriff  May  Levy  on  Real  Prop- 
erty.— In  the  absence  of  any  statute  to  the  contrary, 
the  sheriff  may,  on  the  request  of  the  defendant  in  ex- 
ecution, properly  levy  on  real  estate,  though  there  be 
personal  property  present  amply  sufficient  to  satisfy 
the  execution.  {Smith  vs.  Randall,  6  Cal.  ^2.)  The 
request  should  be  in  writing. 

§  361.    Judgment   Set  Aside  after  Levy.— If 

an  execution  is  regularly  issued  on  a  valid  judgment, 
entered  on  a  default,  and  the  sheriff  levies  on  property 
by  virtue  of  the  same,  and  retains  it  several  days,  until 
the  default  is  opened  and  the  judgment  set  aside,  and 
then  returns  it  to  the  defendant,  the  plaintiff  is  not 
liable  in  damaofes  for  the  seizure  and  detention  of  the 
property,  if  he  acted  without  fraud.  ( White  vs. 
Adams,  ^2  Cal.  4jS-) 

I  362.    Staying  Execution. — If  a  judgment  upon 

which  an  execution  issues  and  the  execution  itself  are 
void  upon  their  face,  the  court  has  power  on  motion 
to  afford  relief,  and  can  arrest  the  process.  {Sanchez 
vs.  Carriaga,  ji  Cal.  170.) 

Notice  of  a  motion  to  set  aside  an  execution  and  a 


§§  3^3'   3^4  EXECUTION GENERALLY. 

levy  made  thereunder  will  not  operate  as  a  stay  of 
proceedings.  {^Byran  vs.  Bei^iy,  8  Cal.  ijo.)  On  this 
point  the  court  say:  "We  think  the  District  Court  did 
not  err  in  overruling  the  motion  to  set  aside  the  exe- 
cution and  levy.  The  notice  that  a  motion  would  be 
made  did  not  operate  as  a  stay  of  proceedings.  After 
giving  the  notice,  the  defendant  should  have  procured 
an  order  staying  the  sale  under  the  execution  until  his 
motion  could  have  been  heard.  [Greemip  vs.  Brotvn, 
Breese  igj;  Beard  vs.  Foreman,  Breese  jc?5;  Robin- 
son vs.  Chisseldme,  4  Scam,  jjj.) 

Where  third  parties  have  purchased  at  an  execution 
sale,  it  is  too  late  to  move  to  set  aside  the  execution. 

An  undertaking  for  costs  and  damages  under  Sec- 
tion 941  Code  Civil  Procedure,  California,  stays  pro- 
ceedings on  an  appeal  in  all  cases,  except  those  speci- 
fied in  Sections  942-5;  and  it  was  held,  in  Root  vs. 
Bryant,  54  Cal.  183,  that  upon  an  appeal  from  a  judg- 
ment for  the  foreclosure  of  a  lien  and  the  sale  of  the 
property  subject  thereto — the  appeal  being  taken  by  a 
lien  holder,  not  in  possession  of  the  land,  whose  lien 
was  adjudged  subordinate  to  the  lien  foreclosed — that 
the  undertaking  for  costs  and  damages  stayed  the 
judgment. 

^  363.  Sheriff  Cannot  Sell  When  Stay  Is  Or- 
dered. A  sheriff  who  sells  property  on  an  execution 
issued  I)y  a  justice  of  the  peace,  after  the  justice  has 
notified  him  that  a  writ  of  certiorari  has  been  issued, 
and  comman(l(;d  him  to  stay  all  proceedings  upon  the 
execuiion,  is  liabh;  for  the  value:  of  the  property. 
{Spencer  vs.  f^oiij^,  jcj  Cal.  J 00.) 

%  364.     Quashing  Execution. — Upon  the  ([uash- 

inLT  of   an  cxccniion,  ihc   oltuci-  is  louiul    to  return    the 


KXECUTIOX-  CKNKRALLV.  ^  365 

property  levied  upon  to  the  defendant  unless  he  have 
other  writs  in  hand.  In  the  case  of  Wellington  vs. 
Sedgwick,  12  Cal.  470,  the  defendant,  as  sheriff,  hav- 
ing an  execution  against  Stevens  &  Markley,  levied  it 
upon  certain  goods,  the  property  of  Stevens  &  Mark- 
ley,  and  placed  them  in  the  hands  of  Wellington,  as 
keeper,  and  subsequently  the  execution  was  quashed, 
having  been  issued  without  seal;  and  between  that 
time  and  the  issue  and  levy  of  a  new  execution,  Wel- 
lington, who  still  remained  in  possession  of  the  goods, 
purchased  the  goods  of  vStevens  &  Markley.  The 
court  held  that  such  purchase  was  valid,  and  vested  the 
property  in  Wellington.  Upon  the  levy  of  the  execu- 
tion, the  property  vested  in  the  sheriff  for  certain  pur- 
poses; his  title  was  only  a  qualified  title,  which  was  de- 
feated by  the  quashing  of  the  execution.  The  title 
then  returned  to  Stevens  &  Markley;  they  could  dis- 
charge the  sheriff  from  the  duty  of  returning  the  prop- 
erty to  them,  which  they  did  by  the  sale  to  Wellington. 

^5  365.  How  Writ  Is  Executed. — "The  sheriff 
must  execute  the  writ  against  the  property  of  the  judg- 
ment debtor,  by  levying  on  a  sufficient  amount  of  prop- 
erty, if  there  be  sufficient,  collecting  or  selling  the 
things  in  action,  and  selling  the  other  property,  and 
paving  to  the  plaintifi  or  his  attorney  so  much  of  the 
proceeds  as  will  satisfy  the  judgment.  Any  excess  in 
the  proceeds  over  the  judgment  and  accruing  costs 
must  be  returned  to  the  judgment  debtor,  unless  other- 
wise directed  by  the  judgment  or  order  of  the  court. 
W^hen  there  is  more  property  of  the  judgment  debtor 
than  is  sufficient  to  satisfy  the  judgment  and  accruing 
costs  within  the  view  of  the  sheriff,  he  must  levy  only 
on  such  parts  of  the  property  as  the  judgment  debtor 


§  3^6  EXECUTION GENERALLY. 

may  indicate,  if  the  property  indicated  be  amply  suffi- 
cient to  satisfy  the  judgment  and  costs."  {California. 
Sec.  6gi  Code  Civil  Pi^ocedure.^  See  also  Sec.  ;^5J 
ante.     Compare: 

Arizona.     Lazus  of  i88g,  p.  40,  Sec.  12. 

Colorado.     Sees.  io8-g  Code  Civil  Procedtire. 

Idaho.     Sec.  4481  Revised  Statutes,  i88j. 

Montana.     Sec.  jji  Code  Civil  Procedure. 

Nevada.     Sec.  32^4  General  Statutes,  1885. 

Oregon.     Sec.  28 j  I  Hill  s  Codes,  i8g2. 

Utah.     Sec.  ^yi  Code  Civil  Procedure. 

Washington.     Sec.  4g6  II  Hiirs  Codes,  i8gi. 

\  366.    Levy  of   Execution — California. — The 

levy  of  the  writ  of  execution  is  made  in  the  same  man- 
ner as  the  levy  of  a  writ  of  attachment  {Sec.  688,  ^42 
Code  of  Civil  Procedure).  The  code  provisions  as  to 
the  manner  of  making  levy  are  to  be  found  in  Sections 
399  and  436  of  this  work.  "  If  property  of  the  judg- 
ment debtor  has  already  been  attached  in  the  same 
action,  the  sheriff  must  satisfy  the  execution  out  of  the 
property  attached  by  him  which  has  not  been  delivered 
to  the  defendant,  or  a  claimant  thereto,  or  subjected  to 
execution  on  another  judgment  recovered  previous  to 
the  issuing  of  the  attachment,  if  it  be  sufficient  for  that 
purpose. 

"i.  By  paying  the  plaintiff  the  proceeds  of  all  sales 
of  perishable  property  sold  by  him,  or  an\-  debts  or 
credits  collected  by  him,  or  so  much  as  shall  be  neces- 
sary to  satisfy  the  judgment. 

"2.  If  any  balance  n^main  due,  and  an  t;xecution 
shall  liave  been  issued  on  the  judgment,  he  must  sell 
1111(1' T  the  execution  so  much  of  the  propc^rty,  real  or 
pe'rsonal,  as   may  be  necessary  to  satisfy  the  balance,  if 


EXECUTION GENERALLY.  §§  367-369 

enough  for  that  purpose  remain  in  his  hands.  Notices 
of  the  sales  must  be  given,  and  the  sales  conducted  as 
in  other  cases  of  sales  on  execution."  (Sec.  550  Code 
Civil  Procedure. ) 

If  personal  property  is  already  held  under  attach- 
ment, the  levy  of  the  execution  is  made  by  indorsing 
upon  the  writ  the  time  of  its  receipt  and  a  memoran- 
dum or  certificate  of  the  fact  of  levy  upon  the  attached 
property. 

§  367.    Levy  in  Other  States. — In  other  states 

the  code  or  statutory  provisions  are  substantially  the 
same  as  in  California.      Compare: 

Arizona.     Lazus  of  i88g,  p.  jg,  Sec.  g. 

Colorado.     Sec.  108  Code  Civil  Procedure. 

Idaho.     Sees.  4477,  4315  Revised  Statutes,  i88j. 

Montana.     Sees.  31  g,  ig4  Code  Civil  Procedtire. 

Nevada.     Sees.  2ig,  ij^  Code  Civil  Procedure. 

Oregon.     Sees.  283,  i^y  I  Hilts  Codes,  i8g2. 

Utah.     Sees.  423,  ^67  Code  Civil  Procedure. 

Washington.     Sees.  J12,  4g6  II  Hill's  Codes,  i8gi. 

\  368.    Levy  of  Execution— Proceedings  Upon. 

— The  provisions  of  the  codes  of  Oregon  and  Wash- 
ington as  to  the  execution  of  judgments  against  prop- 
erty, and  which  are  identical  in  both  these  States,  set 
forth  in  detail  how  the  writ  is  to  be  executed;  and  as 
the  same  procedure  is  substantially  followed  in  those 
states  where  the  statute  is  less  explicit,  the  code  sec- 
tions referred  to  are  given  in  full  in  the  next  section. 

§  369.     Oregon    and    Washington. — In    these 

States  levy  of  execution  against  the  property  of  the 
judgment  debtor  is  made  as  follows: — 


§3/0  EXECUTION GENERALLY. 

"i.  If  property  has  been  attached,  he  shall  indorse 
on  the  execution  and  pay  to  the  clerk  forthwith  the 
amount  of  the  proceeds  of  sales  of  perishable  property 
or  debts  due  the  defendant  receiv^ed  by  him  sufficient  to 
satisfy  the  judgment. 

"2.  If  the  judgment  is  not  then  satisfied,  and  prop- 
erty has  been  attached  and  remains  in  his  custody,  he 
shall  sell  the  same,  or  sufficient  thereof  to  satisfy  the 
judgment. 

"3.  If  then  any  portion  of  the  judgment  remains  un- 
satisfied, or  if  no  property  has  been  attached,  or  the 
same  has  been  discharged,  he  shall  levy  on  the  prop- 
erty of  the  judgment  debtor  sufficient  to  satisfy  the 
judgment. 

"4.  Property  shall  be  levied  on  in  like  manner  and 
with  like  effect  as  similar  property  is  attached. 

"5.  Until  a  levy,  personal  property  shall  not  be 
affected  by  the  execution.  When  property  has  been 
sold  or  debts  received  by  the  sheriff  on  execution,  he 
shall  pay  the  proceeds  thereof,  or  sufficient  to  satisfy 
the  judgment,  as  commanded  in  the  writ. 

"6.  When  property  has  been  attached,  and  it  is 
probable  that  such  property  will  not  be  sufficient  to 
satisfv  the  judgment,  the  execution  may  be  levied  on 
other  property  of  the  judgment  debtor  without  delay. 
If,  after  satisfying  the  judgment,  any  property,  or  the 
proceeds  thereof,  remain  in  the  custody  of  the  sheriff, 
he  shall  deli\'cr  the  same  to  the  judgment  debtor." 

Oregon.     Sec.  2Sj  I  Hill' s  Codes,  iSg2. 

IVasJiington.      Sec.  ./i)6  f f  Ifilfs  Codes,  fScji. 

%  370.     How   Sale   Should   Be  Conducted,     in 

Califf)nii;i   all   sales  ot    property  iiiuler  execution   must 
be  made  at  aiiclion    lo  the   hiijhest  bidder,  between  the 


KXKCUTION CENERALLY.  ^37^ 

hours  of  nine  in  the  morning  and  five  in  the  afternoon. 
If  the  sale  cannot  be  completed  in  one  day,  it  may  be 
postponed  until  the  next  day  without  posting  notices 
of  the  postponement,  if  there  are  persons  present  to 
receive  the  proclamation  "of  the  postponement. 

"After  sufficient  property  has  been  sold  to  satisfy 
the  execution,  no  more  can  be  sold  under  that  writ. 
Neither  the  officer  holding  the  sale,  nor  his  deputy, 
can  become  a  purchaser  or  be  interested  in  any  pur- 
chase at  such  sale.  When  the  sale  is  of  personal 
property,  capable  of  manual  delivery,  it  must  be  within 
view  of  those  who  attend  the  sale,  and  be  sold  in  such 
parcels  as  are  likely  to  bring  the  highest  price.  The 
judgment  debtor,  if  present  at  the  sale,  may  direct  the 
order  in  which  property  shall  be  sold,  when  such  prop- 
erty consists  of  several  lots  or  parcels,  or  of  articles 
which  can  to  advantage  be  sold  separately,  and  the 
sheriff  must  follow  such  directions."  (Sec.  6g^  Code' 
Civil  Procedure. )     Compare  : 

Arizona.     Lazvs  of  i88g,  p.  41,  Sec.  i^. 

Colo7'ado.     Sees.  i8^g,  1862  General  Statutes,  i88j. 

Idaho.     Sec.  4484  Revised  Statutes,  i88j. 

Montana.     Sec.  jj4  Code  Civil  Procedure. 

Nevada.     Sec.  324^  General  Statutes,  188^. 

Oregon.     Sec.  2g2  I  Hills  Codes,  i8g2. 

Utah.     Sec.  jjy  Code  Civil  Procedtire. 

Washington.     Sec.  §01  II  Hills  Codes,  i8gi. 

§  371.    Penalty  for  Selling  without  Notice. — 

An  officer  selling  without  giving  the  statutory  notice 
forfeits  $500  to  the  aggrieved  party,  in  addition  to  his 
actual  damages.     [California.     Sec.  6gj  C.  C.  P.) 

The  remedy  against  a  sheriff  for  selling  property  on 
insufficient  notice  is  confined  to  the  statutory  remedy. 


§§  Zl'^^    112)  EXECUTION GENERALLY. 

(Smith  vs.  Randall,  6  Cal.  ^7;  affirmed  in  //  Cal.  626; 
also  cited  as  authority  in  Satterlee  vs.  San  Francisco, 
2j  Cal.  j2o;  and  see  Herzo  vs.  Sajz  Francisco,  jj  Cal. 
140.)  The  statute  provides  an  adequate  remedy  in 
such  cases  by  an  action  against  the  officer,  and  the 
party  aggrieved  is  entitled  to  no  other  remedy.  The 
purchaser  at  such  sale  is  not  the  "aggrieved  party" 
within  the  meaning  of  the  law.  The  parties  to  the 
execution  are  the  "aggrieved  parties."  [Kelly  vs.  Des- 
mond, 6 J  Cal.  S^7-) 

In  computing  the  time  of  giving  notice  of  the  sale, 
the  day  on  which  the  sale  is  made  should  be  excluded. 

Arizona.     Sec.  igj2  Revised  Statutes,  iSSy. 

Nevada.     Sec.  J246  General  Statutes,  1S85. 

\  112.    Sale  after  Return  Day  -When  Valid. 

— A  levy  made  at  any  time  before  the  return  day  of 
the  writ  is  good,  but  a  levy  made  after  the  return  day 
will  not  be  good  unless  the  delay  has  been  caused  by 
a  stay  of  proceedings.  Where  property  has  been 
levied  upon  and  there  is  not  sufficient  time  between 
the  date  of  the  levy  and  the  return  day,  the  officer 
may  nevertheless  proceed  to  advertise  and  sell  the 
property  under  the  writ,  and  the  sale  will  be  valid. 
[Freeman  on  Executions,  Sec.  106;  g^  Cal.  221.) 

I  Zi:y  Postponement  of  Sale. —  \'^  there  are  no 
bidders  when  property  is  offered  at  sheriff's  sale,  the 
sale  may  \)c  postponed  from  da\  to  tla\'  or  to  a  future 
day  named  ;  but  where  publication  of  the  notice  of  sale 
is  recjuired  to  b(;  made  once  a  week,  for  instance,  the 
publication  must  be  continued  every  week  with  an 
additional  postponement  notice. 

When    ihe   only    bids   made   are    |)ali)al)I)-   dispropor- 


EXECUTION GENERALLY.  §§  374,   375 

tionate  to  the  value  of  the  property,  the  officer  should 
adjourn  the  sale.  In  the  case  of  real  property,  the 
officer  may  be  unable  to  judge  of  the  sufficiency  of  the 
bid,  for  the  reason  that  the  property  may  be  covered 
with  mortgages.  But  in  the  case  of  personal  property, 
an  approximate  estimate  of  its  value  may  be  arrived  at 
by  the  officer.  Inadequacy  of  price  alone  is  sufficient 
to  authorize  a  court  to  set  aside  a  sale.  A  sale  should 
be  postponed  where  there  are-  indications  on  the  part 
of  bidders  of  collusion  to  depreciate  the  sale  to  an 
unreasonable  extent,  or  when  the  officer  has  reason  to 
believe  that  he  can  realize  more  by  a  sale  at  a  future 
day.     See : 

Oregon.     Sec.  2gj  I  Hill's  Codes,  i8g2. 

Washington.     Sec.  502  II  Hilts  Codes,  i8gi. 

%  374.    Re-sale  Where  Bidder  Refuses  to  Pay. 

— "  If  the  purchaser  refuses  to  pay  the  amount  bid  by 
him  for  property  struck  off  to  him,  the  officer  may 
again  sell  the  property  at  any  time  to  the  highest  bid- 
der, and  if  any  loss  be  occasioned  thereby,  the  officer 
may  recover  the  amount  of  such  loss,  with  costs,  from 
the  bidder  so  refusing,  in  any  court  of  competent  juris- 
diction," and  "when  the  purchaser  refuses  to  pay,  the 
officer  may  in  his  discretion  thereafter  reject  any  sub- 
sequent bid  of  such  person."  [Calif 07^nia.  Sees. 
6g^-6  Code  Civil  Procedti7^e.) 

Arizona.     Lazvs  of  i88g,  p.  42,  Sec.  16. 

Idaho.     Sees.  4485-6  Revised  Statutes,  188 j. 

Montana.     Sees.  ^^^-6  Code  Civil  Procedure. 

Nevada.     Sec.  J248  General  Statutes,  188 j. 

Utah.     Sees.  578-g  Code  Civil  Procedure. 

\  375.    The  Title  the  Purchaser  Secures.— A 

sale  of  personal  property  passes  to  the  purchaser  only 


§§  2>7^>   ?>77  EXECUTION GENERALLY. 

such  title  as  the  judgment  debtor  had  on  the  day  the 
attachment  or  execution  was  levied,  and  it  transfers  only 
what  the  debtor  himself  could  have  transferred.  [Low- 
enberg  vs.  Greenebawn,  gg  Cal.  i6^;  Freeman  on  Exe- 
cutions, Sec.  112;  Sees.  dgS-yoo  Code  Civil  Procedure, 
California. ) 

§  376.    Judgment  Payable  in  Money  Only. — A 

sheriff,  under  his  general  powers,  cannot  take  anything 
but  legal  currency  in  satisfaction  of  an  execution,  and 
where  he  takes  a  note,  indorses  it  on  the  execution 
and  then  returns  it  satisfied,  the  return  is  not  conclusive, 
and,  perhaps,  not  prinia-facie  evidence  of  satisfaction, 
unless  it  shows  some  authority  for  receiving  the  note. 
(Mitchell  vs.  Hackett,  14  Cal.  661.) 

§  377.    Application  of  Proceeds— Conflicting 

Attachments. — When  a  sheriff  receives  money  on 
execution  sale  of  property  levied  on  by  virtue  of  attach- 
ments, it  is  his  duty  to  apply  the  money  in  the  order  of 
the  attachments.  Where  there  are  several  attachments, 
and  the  officer  receives  notice  that  the  senior  attiich- 
ment  is  defective,  he  should  make  inquiry  thereon  and 
satisfy  himself  that  he  can  safely  pay  the  money  upon 
such  senior  attachment.  For  if  he  pay  over  money 
upon  a  void  writ,  he  will  be  responsible  to  the  plaintiffs 
under  the  junior  writs,  notwithstanding  the  fact  he  may 
urge  in  excuse,  that  the  senior  writ  was  regular  upon 
its  face. 

It  is  not  only  a  frequently  (quoted  principle  of  law, 
but  a  statutory  enactment,  that  "a  sheriff  or  other  min- 
isterial officer  is  justified  in  the  execution  of,  and  must 
execute,  all  process  and  orders  regular  on  their  face, 
and  issued   by  competent  authority,  whatever  may  be 


EXECUTION (^ENERALLN-.  §    '^■J'] 

the  defect  in  the  proceedings  upon  which  they  were 
issued." 

However  bright  and  clear  the  protective  halo  of  light 
that  is  shed  upon  the  officer's  pathway  in  this  broad  and 
unambiguously  worded  declaration,  officers  frequently 
stumble  into  difficulties  by  serving  process  regular  on 
their  face,  and  issued  by  courts  of  competent  authority. 
For  it  is  an  equally  settled  principle  that  no  person  can 
be  divested  of  his  rights,  except  by  due  process  of  law; 
and  officers  are  often  called  upon  to  carry  out  the  judg- 
ments of  courts  under  the  authority  of  writs  regular  on 
their  face,  which  have  been  wrongfully  issued.  (See 
also  Sec.j^j  ante.) 

In  Buffandeau  z'j".  Edmundson,  17  Cal.  441,  the  court 
say:  "It  is  no  part  of  the  sheriff's  duty  to  sit  in  judg- 
ment upon  official  acts  and  reform  the  errors  or  revise 
the  orders  of  a  judge."  Yet  while  a  sheriff  may  not 
question  the  validity  of  a  writ,  he  is  bound  to  protect 
himself  from  loss  sought  to  be  put  upon  him  while  in 
the  faithful  discharge  of  his  duties. 

In  an  action  on  a  sheriff's  bond,  in  the  case  of  Mc- 
Comb  vs.  Reed,  28  Cal.  281,  judgment  was  rendered 
against  the  officer  and  his  sureties  for  not  applying 
moneys  received  under  execution  upon  plaintiff's  judg- 
ment. There  were  two  writs  of  attachment,  under 
which  the  property  was  taken,  the  money  realized  on, 
the  sale  being  applied  to  the  junior  writ.  The  reason  as- 
signed by  the  sheriff  was  that  the  complaint  which  was 
served  with  the  summons  in  the  first  case  did  not  set 
up  a  cause  of  action  which  would  warrant  the  issuance 
of  an  attachment.  The  court  held,  notwithstanding, 
that  the  writ  was  not  void,  and  that  a  sheriff  who  re- 
ceives an  attachment,  regular  on  its  face,  cannot  pay 
over  the  money  obtained  by  him  from  the  sale  of  prop- 

15 


'^  SyS  EXFXUTIOX -GFA'KRALLV. 

erty  levied  on  by  virtue  of  the  writ  to  a  junior  attach^ 
ing  creditor,  because  the  complaint  in  the  action  on 
which  the  first  attachment  was  issued  did  not  set  forth 
a  cause  of  action  upon  which  an  attachment  could  issue. 
The  application  of  an  attaching  creditor,  to  compel 
the  sheriff  to  pay  over  the  proceeds  of  goods  attached, 
there  being  conflicting  claims  between  several  attaching 
creditors,  may  be  made  by  motion.  If  notice  of  the 
motion  is  not  given  by  the  party  moving,  to  the  other 
attaching  creditors,  it  is  the  duty  of  the  sheriff  to  do 
so,  if  he  wishes  the  decision  to  bind  them.  {Dixey  vs. 
Pollock,  8  Cal.  S43-) 

I  378.     Conflicting    Process    from    Different 

Courts. — One  court  cannot  enjoin  the  process  of  an- 
other court  of  coordinate  jurisdiction,  much  less  seizfe 
the  proceeds  of  such  process.  ( Weaver'  vs.  Wood,  4g 
Cal.  joo.)  If  two  attachments,  issued  out  of  different 
courts  at  different  times,  are  placed  in  a  sheriff's  hands, 
and  both  are  levied  on  the  same  personal  property,  and 
the  court  out  of  which  the  latest  attachment  issues,  or- 
ders the  property  sold  and  the  proceeds  deposited  with 
its  clerk,  and  the  sheriff  obeys,  and  the  money  is  paid 
to  the  second  attaching  creditor,  the  sheriff  is  liable  to 
the  first  attaching  creditor  for  the  amount  for  which 
he  recovers  judgment,  or  for  the  amount  of  the  pro- 
ceeds, if  less  than  the  amount  of  the  judgment.  The 
court  from  wliich  the  second  attachment  issues  may 
make  an  order  of  sale-  of  the  jjropert}',  but  it  has  no 
pow<'r  to  cns|)()se  of  the  fund  arising  trom  the  sale, 
oth(-r  than  the  surj)his  remaining  after  the  claim  ot  the 
first  attaching  cn-ditor  Is  satisfied.  In  the  case  of 
Weaver  vs.  Wood,  the  sheriff  of  Solano  County  had 
two  attachments  Issued   out  of  different  courts,  and   by 


EXECUTION — (;em:rai,ln'.  §  379 

•order  of  the  court  from  which  the  second  attachment 
issued,  sold  the  property  and  paid  the  money  into  the 
court,  from  which  it  was  paid  to  the  plaintiff  in  the  sec- 
ond attachment.  As  a  consequence,  the  sheriff  was 
compelled  to  satisfy  the  first  attachment  out  of  his  own 
pocket.  On  appeal,  the  Supreme  Court  decided  that 
the  sheriff,  having  both  attachments  in  his  hands,  knew 
the  extent  of  the  demand  of  the  first  attaching  creditor, 
and  must  be  held  to  have  known  that  the  Fourth  Dis- 
trict Court  could  only  deal  with  the  excess  of  the  pro- 
<:eeds  of  the  sale  over  that  demand.  ( Weaver  vs. 
Wood,  4g  Cal.  2g'/.) 

%  379.    Payment  into  Court— ^Disobedience  of 

Void  Order. — In  the  case  of  Brown  vs.  Moore,  61 
Cal.  432,  an  application  for  a  writ  prohibiting  the  re- 
spondent from  proceeding  further  in  the  matter  of  cer- 
tain contempt  proceedings  against  the  petitioners,  the 
court  rendered  the  following  opinion: — 

"  P>om  the  verified  petition,  it  appears  that  during 
the  month  of  April,  1882,  sundry  suits  at  law  were 
commenced  by  divers  persons,  against  one  Bartlett.  in 
the  Justices'  Courts  of  Amador  County,  to  recover 
certain  moneys  alleged  to  be  due  from  Bartlett  to  the 
respective  plaintiffs  in  those  suits,  judgment  passed 
for  the  plaintiffs  therein,  on  which  executions  were  is- 
sued and  placed  in  the  hands  of  the  petitioners  in  the 
present  proceedings,  who  are  constables  in  and  for  the 
respective  towns  of  Amador  County,  in  which  are  es- 
tablished the  Justices'  Courts  that  rendered  the  judg- 
ments. The  executions  thus  issued  and  delivered  to 
the  petitioners  were  by  them,  as  such  constables,  levied 
on  certain  personal  property  of  Bartlett.  On  the  2 2d 
of  May,  1882,  a  judgment  was  entered  in  the  Superior 


§  379  EXECUTION GENERALLY, 

Court  of  Amador  County  against  Bartlett  and  in  favor 
of  one  Post,  for  a  money  demand;  and  on  this  judgment 
execution  was  issued  on  the  same  day  and  delivered  to 
the  sheriff  of  Amador  County.  The  sheriff,  on  the 
24th  of  May  following,  levied  his  writ  by  delivering  to 
each  of  the  constables  (petitioners  here)  a  copy  of  the 
same,  together  with  a  notice  that  all  the  property  of 
the  defendant  (Bartlett)  in  their  possession  and  under 
their  control  was  attached  in  pursuance  of  such  execu- 
tion, and  demanded  of  them  the  possession  of  th^ 
property.  The  constables  refused  to  deliver  the  prop'- 
erty  to  the  sheriff,  and  the  next  day  the  latter  returned 
the  writ  to  the  Superior  Court,  stating  in  his  return, 
substantially,  the  facts  as  above  given.  On  the  27th 
of  May,  on  an  affidavit  made  on  behalf  of  Post,  setting 
forth  that  the  judgments  rendered  by  the  Justice's  Court 
were  void,  the  judge  of  the  Superior  Court  made  an 
order  directing  the  constables  to  appear  before  him  on 
the  29th  of  the  same  month  and  show  cause  why  they 
should  not  surrender  the  property  to  the  sheriff.  On 
the  day  named  they  appeared  and  filed  their  several 
affidavits,  declaring  that  they  were  not  debtors  of  Bart- 
lett's,  nor  had  they  any  property  of  his  other  than  that 
levied  on  and  held  by  them  under  and  by  virtue  of  the 
executions  first  above  mentioned.  Thereupon,  the 
judge  refused  to  direct  the  constables  to  deliver  the 
property  tf)  the  sheriff,  but  on  the  same  day  entered 
an  order  in  the  following  words:  'It  is  ordered,  ad- 
judged,  -.ind  decreed  that  plaintiff  herein  (Post)  is 
authorized  to  institute  an  action  against  each  of  said 
persons,  to  wit:  C.  L.  I^nnich,  constable;  H.  B.  lem- 
pleton,  constable;  W.  II.  Brown,  constable;  and 
W.  i\iyton,  his  dej)uty  constable,  to  determine  whether 
or  not   the  said   jjersons   hold', and   retain  said  property 


p:xkcution — (;enp:rallv.  §  379 

adversely  to  the  defendant — said  suits  to  be  commenced 
within  thirty  days  from  the  date  of  this  order.  And 
it  is  further  ordered  that  each  of  said  constables  is  sfiven 
leave  to  sell  the  said  property  in  their  possession  be- 
lonofino;  to  said  defendant  under  the  alleo-ed  executions 
in  their  hands,  and  they,  and  each  of  said  constables, 
is  ordered  to  pay  all  the  proceeds  of  said  sales  of 
property  to  the  clerk  of  the  court  within  ten  days 
after  the  sale  thereof 

"A  motion  was  subsequently  made  on  behalf  of  the 
•constables  that  that  portion  of  the  order  of  May  29th 
purporting  to  authorize  them  to  sell  the  property  in 
their  possession  under  the  writs  of  execution  in  their 
hands,  and  requiring  them  to  pay  the  proceeds  of  such 
sales  to  the  clerk  of  the  Superior  Court,  be  set  aside  on 
the  ground  that  the  court  had  exceeded  its  jurisdiction 
in  so  ordering.      This  motion  was  denied. 

"The  constables  sold  the  property  under  and  by 
virtue  of  the  executions  held  by  them,  and  applied  the 
proceeds  to  their  satisfaction,  instead  of  paying  them 
to  the  clerk  of  the  Superior  Court,  as  directed  by  the 
order  of  May  29th  ;  and  upon  these  facts  being  brought 
to  the  notice  of  the  Superior  Court,  that  court  made 
an  order  to  the  effect  that  the  constables  be  brought 
before  the  court  at  a  time  stated,  and  show  cause  why 
they  should  not  be  adjudged  guilty  of  contempt  of 
court  in  failing  and  refusing  to  pay  the  proceeds  of  the 
sales  of  the  property  to  the  clerk,  and  further  directing 
a  warrant  of  attachment  to  be  issued  and  delivered  to 
the  sheriff,  commanding  him  forthwith  to  arrest  the 
constables  and  hold  them  in  his  custody,  unless  they 
should  execute  an  undertaking  in  the  sum  of  $100  each 
for  their  appearance  on  the  day  named. 

"The   Superior  Court,   in    making  the  orders  com^ 


§  S^O  EXECUTION GENERALLY. 

plained  of  by  the  petitioners,  was  proceeding  under 
the  supposed  authority  of  Sees.  717  and  720  of  the 
Code  of  Civil  Procedure.  Even  if  it  be  admitted  that 
those  sections  have  any  application  to  an  officer  holding 
property  of  a  judgment  debtor  by  virtue  of  a  legal 
process  issued  against  him,  neither  of  them  confers, 
on  the  court  the  power  to  order  such  property  sold, 
nor  to  direct  that  the  proceeds  of  it  be  paid  to  the 
clerk  of  the  court.  {Hartman  vs.  Olvera,  5/  Cal.  SOi.) 
The  Superior  Court,  therefore,  exceeded  its  power  in 
making  the  order  requiring  the  petitioners  to  pay  to 
the  clerk  of  the  Superior  Court  the  proceeds  of  the 
property  sold  under  the  executions  held  by  them 
against  Bartlett.  For  the  disobedience  of  that  void 
order,  the  petitioners  could  not  be  lawfully  punished 
for  contempt.  The  proceedings  looking  to  that  end 
should,  therefore,  be  arrested.  ( Williams  v^.  Dwi- 
nelle,  5/  Cal.  422;  Ouimbo  Appo  vs.  The  People,  20 
N.  V.  5j/.) 

"  Demunrer  overruled." 

§  380.    Senior  and  Junior  Writs. — When  an 

officer  has  kn'ied  upon  property,  he  may  hold  the  same 
under  subsequent  writs  that  may  come  into  his  hands, 
.so  long  as  the  first  levy  remains  thereon.  The  receipt 
of  subsecjuent  writs  oi)erates  as  constructive  levies  upon 
th('  goods  taken  under  the  prior  writ. 

If  a  second  execution  be  delivered  to  a  sheriff  after 
he  has  the  defcnulant's  goods  in  possession  under  the 
prior  execution  of  another,  the  goods  are  bound  by  the 
s(^cond  execution,  subject  to  the  first  execution. 

Wh(Tc  A  and  !>  issu(^  sejjarate  executions,  and 
both  arc  levied  upon  th(;  same  projjerty  at  different 
tim('s,  and   the    prior  execution  of  A    is  set  aside,  B    is 


p:xp:cution — (jkn'krallv.  §  3^1 

entitled  to  be  paid  as  if  he  were  the  sole  execution 
creditor. 

When  a  second  execution  is  levied  upon  certain 
goods,  and  the  proceeds  afterwards  exhausted  by  the 
first  execution,  the  sheriff's  return  of  nulla  bona  upon 
the  second  execution  is  proper. 

Where  there  are  several  writs  of  attachment  levied 
upon  property,  the  first  writ  levied  holds  the  property 
to  satisfy  the  judgment  that  may  be  recovered  under 
that  writ ;  and  when  an  execution  is  issued  against  the 
property,  whether  it  be  in  the  case  of  the  first  attach- 
ment, or  in  any  other,  the  property  may  be  sold  under 
such  execution ;  but  under  whatever  execution  the 
property  be  sold,  the  judgment  under  the  first  attach- 
ment must  be  satisfied  first,  and  the  proceeds  of  the 
sale  must  be  held  by  the  officer  for  that  purpose  until 
the  judgment  under  the  first  attachment  is  rendered, 
or  the  case  otherwise  disposed  of.  The  judgments 
under  the  senior  writs  of  attachment  are  to  be  satisfied 
in  the  order  in  which  they  are  levied. 

§  381.    Payment  of  Proceeds  of  Sale.— If  the 

sheriff  neglects  or  refuses  to  pay  over  on  ciemand,  to 
the  person  entitled  thereto,  any  money  which  may 
come  into  his  hands  by  virtue  of  his  office  (after 
deducting  his  legal  fees),  the  amount  thereof,  with 
twenty-five  per  cent  damages  and  interest  at  the  rate 
of  ten  per  cent  per  month  from  the  time  of  demand, 
may  be  recovered  by  such  person.  {California.  Sec. 
41 8 1  Political  Code. )  In  Oregon  the  sheriff  is  required 
to  pay  to  the  clerk  of  the  court  all  moneys  realized 
upon  execution  sales.  {Oregon.  Sec.  2g6  I  Hill's 
Codes,  iSg2.) 


§§  382-385  EXECUTION'  -r.ENKRAl.LV. 

§  382.     Surplus  to  be  Returned  to  Defendant. 

— When  the  lien  ot  an  attachment  is  satisfied,  the 
property  not  disposed  of  in  satisfaction  of  the  Hen,  as 
well  as  the  surplus  moneys  that  may  remain  after  the 
sheriff's  sale  and  satisfaction  of  the  debt,  remain  sub- 
ject to  the  rights  of  the  judgment  debtor  or  his  assignee. 
{Sexey  vs.  Adkison,  40  Cal.  ^08. )  See  also  Sees.  j6s, 
j68-g  ante. 

§  383.     Death  of  Defendant  after  Levy. — The 

death  of  the  judgment  debtor  after  levy  of  execution 
does  not  affect  the  lien  or  relieve  the  sheriff  of  his  obli- 
gation to  sell  the  property.  ( Verniont  Marble  Co.  vs. 
Superior  Coui't,  gg  Cal.  Sjg.) 

%  384.     Computation  of  Interest  on  Judgment. 

—  rhe  statutory  interest  on  the  judgment  is  to  be  com- 
puted from  the  date  of  its  entry,  and  not  from  the  date 
of  the  rendition  or  signing. 

§  385.  Return  of  Writ. — An  execution  should 
not  be  returned  until  the  return  day  indicated  in  the 
writ,  except  upon  written  instructions  from  the  plaintiff 
or  plaintiff's  attorney.  An  officer's  return  on  process 
of  every  kind  should  state  that  he  has  performed  what 
the  mandatory  part  of  the  process  requires  of  him. 
It  shcAild  be  a  report  of  his  proceedings,  and  should 
contain  a  statement  of  the  acts  which  he  has  done 
under  and  by  virtue  of  it,  and  the  place  and  the  time 
when  and  where  they  were  done.  'I'h(-  office;  is  merely 
ministerial.  Hence  it  is  insufficient  for  him  to  return 
that  he  has  duly  or  legally  serxcd  the  proc(!ss  com- 
mitted to  him.  ihe  time  for  its  return  does  not  there- 
fore commencft  to  run  until   it   has   been    indorsed    "re- 


EXECUTION C.ENERALLV.  §§  386-388 

ceivecl."  In  California  the  execution  may  be  made 
returnable,  at  any  time  not  less  than  ten  nor  more 
than  sixty  days  after  its  receipt  by  the  sheriff,  to  the 
clerk  with  whom  the  judgment  roll  is  filed.  {Sec.  68 j 
Code  Civil  Procedure. )     Compare  : 

Arizona.     Statutes  i88g,  p.  j8,  Sec.  j. 
.  Colorado.     Sec.  2^j8  Milis  Ann.  Statutes,  i8gi. 

•  Idaho.     Sec.  44  J 2  Revised  Statutes,  188'/. 
■   Montana.     Sec.  j/5  Code  Civil  Procedure. 

JSTevada.     Sec.  J2j6  General  Statutes,  188^. 

Oregon.     Sec.  2y8  I  Hilfs  Codes,  i8q2. 

Washington.     Sec.  joy  II  Hills  Codes,  i8gi. 

Utah.     Sec.  ^62  Code  Civil  Procedure. 

\  386.  Necessity  of  Prompt  Return. — The  sher- 
iff is  liable  on  his  bond  if  he  fails  to  return  an  order  of 
sale,  whereby  the  plaintiff  loses  his  debt  by  reason  of 
failure  to  procure  entry  of  a  deficiency  judgment.  See 
also  Sec.  jc?/,  post. 

\  387.    Proper  Filing  of  Return. — Care  should 

be  taken  by  the  sheriff  to  see  that  his  return  is  properly 
filed  by  the  clerk  ;  for  if  the  judgment  creditor  loses 
his  debt  by  not  procuring  deficiency  judgment,  no  pre- 
sumptions are  indulged  in  favor  of  the  sheriff,  if  the 
return  be  subsequently  found  in  the  clerk's  office  with- 
out indorsement  of  filing.  {Boyd  vs.  Desmond,  jg 
Cat.  2^0.) 

§  388.  Return— Time  Suspended  by  Injunc- 
tion.— An  order  made  by  a  court  of  competent  juris- 
diction, staying  the  sheriff  from  interference  with  the 
property  of  a  judgment  debtor,  suspends,  during  its 
continuance,   the  running  of  the  statutory  period  for 


§§  389-391  i:XECUTION GENERALLY. 

executing  the  process.  [Ansonia  Brass  and  Copper 
Co.  vs.  Connor,  10 j  N.  V.  50^.) 

§  389.    Stay  of  Proceedings  Extends  Time. 

When  a  stay  of  proceedings  is  ordered,  the  time  of  the 
stay  is  not  to  be  computed  as  part  of  the  time  in  which 
the  writ  runs  to  the  return  day.  That  is,  if  a  writ  is 
made  returnable  within  sixty  days,  and  a  stay  of  pro- 
ceedings is  granted  for  twenty  days,  the  writ  will  have 
eighty  days  to  run  before  it  must  be  returned. 

§  390.    Return  in  Foreclosure  Cases.— An  order 

of  sale  in  foreclosure,  either  by  certified  copy  of  the 
decree  or  by  writ  issued  by  the  clerk  of  the  court,  is 
not  an  execution  within  the  meaning  of  a  provision 
requiring  the  return  of  execution  within  a  certain 
period ;  and  if  the  writ  contain  such  a  direction,  it  is  of 
no  effect  and  a  sale  made  after  the  time  mentioned  is 
valid.  {^Sottthern  Cal.  L.  Co.  vs.  Hotel  Co.,  c)4  CaL 
217.) 

I  391.    Effect  of  Insolvency  Proceedings.    By 

the  California  Insolvent  Act  of  1880,  any  valid  lien, 
either  of  a  judgment  or  by  levy  of  execution  upon 
property  of  the  insolvent  debtor,  existing  in  good  faith 
under  proceedings  already  commenced,  is  not  affected. 
{Sec.  .^5,)  If  any  suit  be  jjending,  it  may  be  prosecuteci 
to  judgment  by  leave  of  court,  for  the  ascertainment 
of  th('  amount  due  or  for  fixing  the  liability  of  sureties 
on  bond  given  to  release  attachment;  in  either  case 
execution  shall  be  stayed  to  await  the  determination  of 
the  court  in  insolvcMicy  on  tin;  (jU('stion  ol  discharge, 
{Sec.  4^.)  Wh(Mi  levy  of  execution  has  been  made  at 
the  time  the   jx-tition  in    insolvency   is  filed,  the  sherift 


KXECIJTION GENERALLY.  §§  392- 394 

should  proceed  with  the  sale,  the  statutory  restraining- 
order  in  the  insolvency  proceedings  being  of  no  effect 
as  against  the  lien  of  the  judgment  creditor.  ( Ve7'- 
mont  Marble  Co.  z's.  Superior  Court ,  gg  Cal.  S79-) 

%  392.    Foreclosure  of  Mortgages  and  Other 

Liens. — In  California  a  valid  mortgage  or  mechanic's 
lien  existing  upon  property  of  the  insolvent  debtor  at 
the  time  of  filing  the  petition,  may  be  foreclosed  by 
leave  of  the  insolvency  court,  and  the  property  may  be 
sold  on  execution  sale,  the  mortgagee,  however,  being 
required  to  waive  all  claim  upon  the  other  assets  ot 
the  insolvent  debtor.  {Sec.  44  Insolvent  Act  of  i88o,- 
Montgomery  vs.  Merrill,  62  Cal.  j8^;  Bradford  vs. 
Dorsey,  6j  Cal.  122.) 

§  393.    Execution    against    Corporations  for 

Fine. — "When  a  fine  is  imposed  upon  a  corporation  on 
conviction,  it  may  be  collected  by  virtue  ot  the  order 
imposing  it,  by  the  sheriff  of  the  county,  out  of  its  real 
and  personal  property,  in  the  same  manner  as  upon  an 
execution  in  a  civil  action."  [California.  Sec.  ijgj 
Penal  Code. 

I  394.  Justice's  Court  Executions. — In  Cali- 
fornia execution  for  the  enforcement  of  a  judgment 
of  a  Justice's  Court  maybe  issued  at  any  time  within  five 
years  from  the  entry  of  judgment.  It  must  be  directed 
to  the  sheriff  or  to  a  constable  of  the  county,  and  must 
be  subscribed  by  the  justice,  and  bear  date  the  day  of 
its  delivery  to  the  officer.  At  the  request  of  the  judg- 
ment creditor,  the  writ  may  be  renewed  before  the  ex- 
piration of  time  fixed  for  its  return,  by  the  word  "re- 
newed" written  thereon,   with    the    date    thereof,   and 


§§  395-397  EXECUTION — generaelv. 

subscribed  by  the  justice.  Such  renewal  has  the  effect 
of  an  orig-inal  issue,  and  may  be  repeated  as  often  as 
necessary.  {California.  Sees,  goi-j  Code  Civil  Pro- 
cedure. ) 

The  filing  and  docketing  of  a  transcript  of  a  judg- 
ment rendered  by  a  justice  of  the  peace  in  the  office  of 
the  clerk  of  the  county  does  not  empower  the  clerk  of 
the  court  in  which  it  is  filed  and  docketed  to  issue  an 
execution  on  the  same  after  five  years  have  elapsed 
from  the  date  of  its  rendition.  {Kerns  vs.  Graves ,  26 
Cal.  156.) 

With  reference  to  property  in  the  same  county,  the 
provisions  for  the  enforcement  of  an  execution  upon  a 
judgment  in  a  Justice's  Court  are  the  same  as  those 
relating  to  courts  of  record. 

§  395.    Power  of  Justice  over  His  Judgments. 

— A  justice  of  the  peace  has  power  to  recall  an  execu- 
tion issued  by  him  on  a  void  judgment,  and  stay  fur- 
ther proceedings,  even  if  the  judgment  has  been  dock- 
eted in  the  office  of  the  county  clerk  and  the  execution 
has  been  issued  by  the  clerk.  {Gates  vs.  Lane,  ^g 
Cal.  266.) 

%  396.    Enjoining    Justice's    Judgment.— If  a 

judgment  rendered  by  a  justice  of  the  peace  is  void  on 
its  face,  a  suit  in  equity  cannot  be  maintained  to  re- 
strain its  enforcement  by  execution,  even  if  the  execu- 
tion is  issued  by  the  county  clerk  on  a  copy  of  the  judg- 
ment docketed  with  him.  {Ga/cs  7's.  Lane,  ^g  Cal. 
266.) 

5  397.      Execution    to    Constable    Levy    by 

Sheriff.       I  tie    tact    that  an  execution  issucxl   to  a  con- 


EXECUTION — GENERALLY.  §  398 

Stable  was  served  by  the  sheriff  does  not  render  the 
service  void  where  it  might  have  been  issued  to  either 
the  sheriff  or  constable.  {J^oss  vs.  Welltnan,  j6  Pac, 
Rep.  402,  102  Cal.  I. 

\  398.  Setting  Aside  Justice's  Court  Execu- 
tion.— Where  plaintiff  seeks  to  enjoin  a  sale  of  per- 
sonal property,  under  an  execution  issued  upon  a  judg- 
ment recovered  against  him  in  a  Justice's  Court,  on  the 
ground  that  the  summons  was  never  served  on  him, 
and  therefore  that  the  justice  never  acquired  jurisdic- 
tion of  his  person:  Held,  that  plaintiff's  remedy  is  by 
motion  in  the  Justice's  Court  to  set  aside  the  execution. 
{Com stock  vs.  Clemens,  ig  Cal.  77.) 


CHAPTER    XIII. 


EXECUTION — PERSONAL  PROPERTY. 

§  399.  Levy,  How  Made. 

§  400.  Arizona — Levy,  How  Made. 

Ji  401.  Forthcoming  Bond. 

§  402.  Entry  into  Buildings. 

§  403.  Expense  of  Keeping  Property  Levied  Upon. 

§  404.  Inventory  of  Property. 

§  405.  Notice  of  Sale. 

§  406.  Levy  upon  Judgments. 

§  407.  Indebtedness  Evidenced  by  Promissory  Note. 

§  408.  Certain  Corporation  Stock  Not  Subject  to  Execution. 

§  409.  Property  Held  as  Security  Not  Subject  to  Execution. 

§  410.  Property  of  Inhabitants  Not  Liable  for  County  Debts. 

§  411.  Property  in  Custody  of  Law. 

§  412.  Equitable  Claim  Not  Subject  to  Execution. 

§  413.  Sale  of  Choses  in  Action. 

§  414.  Sale  of  Toll  Road. 

§  415.  Property  of  Wife  Not  Liable  for  Husband's  Debt. 

§  416.  (rift  from  Husband  to  Wife. 

§  417.  Garnishment  and  Demand. 

§  418.  Remedy  on  Garnishee's  Failure  to  Deliver. 

i^  419.  Prior  Assignment  of  Fund  Garnisheed. 

§  420.  Supplementary  Proceedings. 

§  421.  .Supi»lementary  Proceedings — Scope  of 

§  422.  Personal  Privilege  cjr  Right — How  Sold. 

J5  423.  Franchise  Not  Liable  to  Execution  Sale. 

*5  424.  Personal  Property  Mortgaged,  Pledged,  etc. 

^  425.  Proceeds  of  Mortgaged  Property. 

^  426.  Execution  Sales  of  Vessels. 


EXECUl  ION I'KRSONAL    i'KOri:Rl\'.  §  399 

§  427.     Preferred  Claims  against  Vessels. 


§  42S 
§  429 
§  430 
§  431 
^  432 
§  433 
§  434 
§  435 


Purchaser  Entitled  to  Certificate  of  Sale. 
Claim  by  Third  Party. 
Liability  for  Wrongful  Sale. 
Levy  in  Partnership  or  Joint  Property. 
Priority  of  Partnership  Creditors. 
Harvested  Grain  Crop — Different  Owners. 
Partnership — Sale  or  Dissolution. 
Release  of  Execution. 


v;  399.      Levy,  How  Made. — The  manner  of  mak- 


ing  the  levy  of  the  writ  of  execution  is  the  same  as 
upon  levy  of  attachment.  The  California  Code  of 
Civil  I-'rocedure  [Sec.  688)  provides  that  "shares  and 
interest  in  any  corporation  or  company,  and  debts  and 
credits,  and  all  other  property,  both  real  and  personal, 
or  any  interest  in  either  real  or  personal  property,  and 
all  other  property  not  capable  of  manual  delivery,  may 
be  attached  on  execution,  in  like  manner  as  upon  writs 
of  attachment.  Gold  dust  must  be  returned  by  the 
officer  as  so  much  money  collected,  at  its  current  value, 
without  exposing  the  same  to  sale.  Until  a  levy,  prop- 
erty is  not  affected  by  the  execution."  In  Colorado 
execution  binds  the  personal  property  of  the  defend- 
ant as  soon  as  the  writ  comes  to  the  sheriff's  hands. 
(As  to  manner  of  levying  attachment,  see  Chapters 
X  and  XI,  ante.) 

Arizona.     Sec.  ^^  Revised  Statutes,  i88g. 

Colorado.     Sec.  2^j8  Mill's  Ann.  Statutes,  i8gi. 

Idaho.     Sec.  ^.^JJ  Revised  Statutes,  188"/. 

Montana.     Sec.  jig  Code  Civil  Procedure. 

Nevada.     Sec.  3241  General  Statutes,  1885. 

Oregon.     See.  283  I  Hills  Codes,  i8g2. 

Utah.     Sec.  jog  Code  Civil  Procedu7'e. 

Washington.     Sec.  2g6  II  Hills  Codes,  i8gi. 


§§  400»  401       KXECUTION-    PERSONAL  PROPER  TV. 

§  400.    Arizona — Levy,  How  Made. — In  Arizona 

a  levy  of  execution  on  personal  property  is  made  "  by 
taking  possession  thereof,  -when  the  defendant  in  exe- 
cution is  entitled  to  the  possession.  When  the  de- 
fendant in  execution  has  an  interest  in  personal  prop- 
erty, but  is  not  entitled  to  the  possession  thereof,  a 
levy  is  made  thereon  by  giving  notice  thereof  to  the 
person  who  is  entitled  to  the  possession,  or  one  of 
them,  where  there  are  several. 

"A  levy  upon  horses,  mules,  jacks,  jennets,  horned 
cattle  or  hoQfs  runnino-  at  larore  in  a  ranee,  and  which 
cannot  be  herded  or  penned  without  great  inconven- 
ience and  expense,  may  be  made  by  designating,  by 
reasonable  estimate,  the  number  of  animals  and  de- 
scribing them  by  their  marks  and  brands,  or  either. 
Such  levy  shall  be  made  in  the  presence  of  two  or  more 
credible  persons,  and  notice  thereof  shall  be  given  in 
writing  to  the  owner  or  his  herder  or  agent,  if  residing 
within  the  county  and  known  to  the  officer  making  the 
levy,  and  a  copy  of  such  notice  attached  to  a  copy  of 
the  writ  shall  be  filed  by  the  officer  with  the  county 
recorder  of  the  county  where  the  levy  is  made. 

"A  levy  on  the  stock  of  any  corporation  or  joint 
stock  company  may  be  made  by  leaving  a  notice  thereof 
with  the  secretary  or  other  officer  of  the  company  upon 
whom  service  of  process  against  the  company  is  author- 
ized by  law. 

"A  Utvy  upon  the  int('rcstof  a  partner  in  [)artnership 
property  is  made  by  leaving  notice  with  one  or  more 
of  the  partners  or  with  a  clerk  of  the  partnership." 
[Laws  0/  /88g,  pp.  jg,  40,  Sec.  g.) 

§  401.  Forthcoming  Bond.  In  Colorado.  Ore- 
gon   and    Washingt(jn,    after    levy    of    executi(ni,     the 


KXECUTION PERSONAL   PROrERTY.    §§402-405 

debtor  may  be  allowed  to  retain  possession  of  the 
property  upon  giving  to  the  sheriff  a  bond,  with  suf- 
ficient surety,  conditioned  that  the  property  shall  be 
delivered  to  the  sheriff  at  the  time  and  place  of  sale, 
and  for  non-delivery  an  action  may  be  maintained  on 
such  bond. 

Colorado.     Sees.  2^^g-6o  Mills    Ann.  Slats.,  i8gi. 

Oregon.     Sec.  2go  I  HiUs  Codes,  i8g2. 

Washington.     Sec.  ^gg  II  Hilts  Codes,  i8gi. 

§  402.    Entry  into  Buildings. — An  execution  will 

not  justify  breaking  into  a  house.  But  after  entrance 
has  been  lawfully  effected,  through  an  outside  door, 
the  officer  may,  for  the  purpose  of  levying  upon  prop- 
erty, break  through  inside  doors  to  get  at  the  property. 

§  403.    Expense  of  Keeping  Property  Levied 

Upon. — The  sheriff  is  allowed  his  necessary  expenses 
in  keeping  and  preserving  property  seized  on  attach- 
ment or  executions,  the  amount  to  be  fixed  by  the 
court  and  paid  out  of  the  fees  collected  in  the  action. 
{California.     Statutes  i8g^,  p.  5oy.^ 

§  404.    Inventory  of  Property. — A  special  in 

tentory  of  the  articles  to  be  sold  should  be  prepared, 
so  that  confusion  may  be  avoided  when  the  sale  takes 
place.  A  large  stock  of  goods  sold  in  parcels  cannot 
well  be  disposed  of  at  a  public  sale  where  there  are 
many  bidders  present  without  such  an  inventory  and 
prearranged  method  of  conducting  the  sale.  (See  also 
Sec.  262,  ante.) 

§  405.  Notice  of  Sale. —  No  sale  should  be  held 
except  after  the  statutory  notice  has  been  given,  which 
in  California  is  by  posting  written  (or  printed)   notice 

16 


§  406        *       EXECUTION PERSONAL  PROi'ERTV. 

of  the  time  and  place  of  sale  in  three  public  places  in 
the  township  or  city  where  the  sale  is  to  take  place, 
for  not  less  than  five  nor  more  than  ten  days.  The 
notices  must  state  the  kind  of  money  or  currency  in 
which  bids  may  be  made  at  such  sale,  which  must  be 
the  same  as  that  specified  in  the  judgment.  If  the 
writ  does  not  specify  in  the  judgment  the  kind  of 
money,  the  sale  should  be  made  for  "lawful  money  of 
the  United  States." 

Arizona.     Sees,  igoi,  igo6-g  Revised  Statutes,  i88y. 

Coloi'-ado.  Sees.  2 ^^8,  254^  Mills'  Ann.  Stat.,  p. 
8gi. 

Idaho.     Sec.  4482  Revised  Statutes,  188^. 

Montana.     Sec.  ^j2  Code  Civil  Procedure. 

Nevada.     Sec.  324^  Genei^al  Statutes,  188^. 

Oregon.     Sec.  2gi  I  Hills  Codes,  i8g2. 

Utah.     Sec.  ^J2  Code  Civil  Procedure. 

Washington.     Sees,  ^oo-i  II  Hills  Codes,  i8gi. 

§  406.    Levy  upon  Judgments.— The  method  of 

levying  upon  a  judgment  is  so  clearly  and  authoritatively 
pointed  out  in  the  decision  of  the  Supreme  Court  of 
the  State  of  California,  in  the  case  of  McBride  vs.  Fal- 
lon (^5  Cal.  JO/),  that  the  portion  of  that  decision 
relating  thereto  is  herewith  quoted. 

Two  cross  judgments  existed  between  the  parties. 
One  party  took  out  an  execution  on  the  judgment  in  his- 
favor,  and  caused  it  to  be  levied  on  the  judgment  against 
him,  which  was  subsequently  sold  for  a  nominal  sum,. 
The  plaintiff  in  whose  favor  the  judgment  so  levied 
upon  and  sold  was  entered,  moved  the  court,  after  said 
sale,  that  execution  issue  thereon.  The  motion  was 
granted,  and  from  that  order  the  appeal  was  takenu 
In   deciding  the  case,   the   Siij)r(nu;   Court  say:   "WeJ 


EXECUTION PERSONAL  PROPERTY.  §  406 

are  clearly  of  opinion  that  a  judgment  cannot,  in  any 
case,  be  levied  on  and  sold  under  execution  as  the 
judgment  in  this  case  was.  After  enumerating  the 
kinds  of  property  of  a  judgment  debtor  liable  to  exe- 
cution, the  code  provides  that  'shares  and  interests  in 
any  corporation  or  company  and  debts  and  credits 
and  all  other  property  not  capable  of  rnanual 
delivery,  may  be  attached  on  execution  in  like  manner 
as  upon  writs  of  attachment'      (C  C.  P.  688.) 

"  'Debts  and  credits,  and  property  not  capable  of 
manual  delivery,  must  be  attached '  in  the  mode  pointed 
out  in  Subdivision  5,  Section  542,  Code  Civil  Procedure, 
that  is,  'by  leaving  with  the  person  owing  such  debts, 
or  having  in  his  possession  or  under  his  control  such 
credits  and  other  personal  property,  or  with  his  agent, 
a  copy  of  the  writ  and  a  notice  that  the  debts  owing  by 
him  to  the  defendant,  or  the  credits  and  other  personal 
property  in  his  possession  or  under  his  control,  belong- 
ing to  the  defendant,  are  attached  in  pursuance  of  such 
writ.' 

"The  fact  that  a  debt  is  evidenced  by  a  judgment 
does  not,  in  our  opinion,  make  it  anything  more  or  less 
than  a  debt,  or  more  capable  of  manual  delivery  than 
it  would  be  if  not  so  evidenced.  No  provision  is  made 
for  attaching  or  levying  on  evidences  of  debt.  It  is  the 
debt  itself  which  may  be  attached  by  writ  of  attach- 
ment, or  'on  execution  in  like  manner  as  upon  writs  of 
attachment.'  This  we  think  to  be  the  meaning  of  the 
code,  and  the  mode  prescribed  by  it  is  exclusive, 
[Code  Civil  Procedure,  4  and  18.)" 

In  the  later  case  of  Dore  vs.  Dougherty  (72  Cal.  232) 
the  court  say:  "It  is  claimed  that  the  judgment  was  not 
subject  to  levy  and  sale  under  execution.  We  think  this 
point  well  taken.      It  was  expressly  so  held  in  McBride 


§  407  EXECUTION PERSONAL  PROPERTY. 

VS.  Fallon,  65  Cal.  301.  .  .  .  It  is  claimed  that  the 
case  of  McBride  vs.  Fallon,  supra,  only  holds  that  the 
sale  could  not  be  made  as  it  was  attempted  in  that  case, 
and  that  the  mode  of  levy  there  was  different  from  the 
mode  pursued  here.  But  that  ruling  is  expressly  placed 
on  the  ground  that  the  judgment  is  but  the  evidence  of 
the  debt,  and  that  the  statute  has  made  no  provision 
for  attaching  or  levying  upon  evidences  of  debt,  but 
that  it  is  the  debt  itself,  and  not  the  evidence  of  it, 
which  may  be  levied  upon  by  the  writ  of  attachment, 
or  on  execution  in  like  manner  as  upon  writs  of  attach- 
ment." These  cases  have  also  been  cited  with  approval 
in  the  more  recent  case  of  Latham  vs.  Blake,  ']']  Cal. 
646. 

§  407.    Indebtedness  Evidenced  by  Promissory 

Note. —  In  Davis  vs.  Mitchell,  34  Cal.  81,  it  was  held 
that  a  sheriff  might,  under  an  execution  and  sale,  levy 
on  a  promissory  note  belonging  to  the  judgment  debtor, 
and  that  the  purchaser  took  it  subject  to  any  defense 
which  the  maker  might  have  had  against  it,  if  the  payee 
had  retained  it.  Whether,  in  such  case,  the  sale  will  be 
valid  without  a  delivery  of  the  note  to  the  purchaser, 
is  discussed  in  the  decision,  but  not  decided. 

In  the  more  recent  case  of  McBride  vs.  ballon,  65 
Cal.  301  (see  also  Sec.  406,  ante)  the  court,  commenting 
upon  that  case,  said:  "In  that  case  the  sheriff  had 
pcssession  of  the  note,  and  delivered  it  to  the  purchaser. 
The  court  alluded  to  that  circumstance,  without  passing 
upon  its  materiality.  The  case  aro.se  and  was  decided 
before  the  enactment  of  the  code,  which,  while  it  does 
not  prescribe  a  mode  of  proceeding  in  such  cases  mate- 
rially tlifferent  from  that  pointed  out  bv  the  late  Prac- 
tice Act,  mak(;s  that    mode   cxchisivc       lUit,  independ- 


EXKCUriON I'KRSONAL   I'ROl'EKTV.    §^408-41  I 

entl)'  of  that  circLimstcince,  we  could  not,  with  our 
present  views,  assent  to  the  doctrine  of  that  case." 
The  code  provisions  referred  to  will  be  found  in  Sec- 
tions 232  and  399,  ante. 

\  408.    Certain  Corporation  Stock  Not  Subject 

to  Execution. — Stock  of  a  corporation,  purchased  by 
it  at  a  sale  for  delinquent  assessments  under  statutory 
provisions,  cannot  be  levied  on  under  an  execution 
against  the  corporation.  [Robinson  vs.  Spaulding  G. 
if  S.  Mg.  Co.,  72  Cal.  j2.^ 

I  409.    Property  Held  As  Security  Not  Subject 

to  Execution. — A,  being  indebted  to  B,  delivered  to 
him  a  quantity  of  lumber  as  security  for  payment  of 
the  debt,  with  the  understanding  that  B  should  proceed 
and  sell  the  lumber,  and  pay  his  debt  out  of  the  pro- 
ceeds. The  lumber  was  afterward  levied  upon  by  the 
defendants  under  an  execution  in  their  favor,  against  A, 
as  his  property:  Held,  that  the  lumber  was  not  subject 
to  seizure  under  an  execution  against  A,  without  pay- 
ment, in  the  first  place,  of  his  indebtedness  to  B. 
{Swanston  &  Taylor  vs.  Sublette,  i  Cal.  124.) 

§  410.    Property  of  Inhabitants  Not  Liable  for 

County  Debts. — The  private  property  of  an  inhabit- 
ant of  a  county  is  not  liable  to  seizure  and  sale  on  ex- 
ecution for  the  satisfaction  of  a  judgment  recovered 
against  the  county.      {Emeric  vs.  Gilman,  10  Cal.  404.) 

^411.    Property  in  Custody  of  Law. — Property 

in  the  custody  of  the  law  is  not  liable  to  seizure,  with- 
out an  order  from  the  court  having  charge  thereof. 
(  Ytt'ba  County  vs.  Adams,  /  Cal.  J5. )  See  also  Sec. 
21  ja,  ante. 


§§412-414    EXECUTION PERSONAL  PROPERTY. 

§  412.  Equitable  Claim  Not  Subject  to  Exe- 
cution.^— The  equitable  claim  of  a  vendee  for  return  of 
part  payments  made  by  him  on  a  purchase  of  land,  as 
to  which  he  is  in  default,  is  not  subject  to  garnishment 
by  his  judgment  creditor.  {Redondo  Beach  Co.  vs. 
Brewery  loi  Cal.  J22.) 

§  413.    Sale  of  Choses  in  Action. — Wherever 

choses  in  action  are  liable  to  levy  and  sale,  they  must 
be  in  possession  of  the  officer  at  the  sale,  to  be  exhib- 
ited to  the  bystanders  and  assigned  to  the  purchaser, 
unless  a  full  and  accurate  description  of  the  particular 
interest  (where  it  is  a  contingent  and  complicated  con- 
tract) and  chose  in  action,  with  all  its  conditions  and 
covenants,  and  a  full  explanation  of  the  facts  determin- 
ing the  value  of  the  chose,  be  given  by  the  levy  and 
announced  at  the  sale.  In  the  case  of  Crandall  vs. 
Blen,  13  Cal.  20,  the  sheriff  levied  by  garnishment 
upon  a  written  contract  or  agreement,  but  did  not  take 
any  property  into  possession.  Notices  were  posted 
and  sale  had  and  the  agreement  was  struck  off  to  the 
plaintiff  The  agreement  was  not  present  at  the  sale, 
nor  fully  explained  to  the  bystanders.  The  court  held 
that  no  title  whatever  passed  by  the  sale, 

§  414.  Sale  of  Toll  Road.  A  franchise  may  be 
treated  as  property  and  sold  under  execution.  Section 
388  of  the  California  Civil  Code  provides  that  "for  the 
satisfaction  of  any  judgment  against  a  corporation,  au- 
thorized to  receive  tolls,  its  franchisee  and  all  the  rights 
and  privileges  thereof  may  be  levied  u])()n  and  sold  un- 
der execution,  in  the  same  manner  and  with  like  effect 
as  any  othc.-r  property."  I  he  sheriff  is  re'(|uired  to  give 
to  the-   purchaser  at  such   sale  a  certificate  of  jnirchase. 


EXECUriOX — I'KRSOXAL   I'ROl'ERTV.    §§415,  416 

Such  sale  must  be  made  in  the  county  in  which  the 
corporation  has  its  principal  place  of  business,  or  in 
which  the  property  or  some  portion  thereof,  upon  which 
the  taxes  are  paid,  is  situated.  (Sees.  jSg,  jgj  Civil 
Code. ) 

Colorado.     Sees.  2^41-4  Mills  Ann.  Slats.,  i8gi. 

I  415.  Property  of  Wife  Not  Liable  for  Hus- 
band's Debt. — The  property  of  the  wife  cannot  be 
taken  under  an  execution  against  her  husband.  Sec- 
tion 8  of  Article  XX  of  the  Constitution  of  California 
provides  that  all  property,  real  and  personal,  owned  by 
either  husband  or  wife  before  marriage,  or  that  acquired 
by  either  of  them  afterwards,  by  gift,  devise  or  de- 
scent, shall  be  their  separate  property;  and  Section  16S 
of  the  Civil  Code  declares  that  the  earnings  of  the  wife 
are  not  liable  for  the  debts  of  the  husband. 

§  416.  Gift  from  Husband  to  Wife.— A  trans- 
fer of  personal  property  by  gift  from  the  husband  to 
the  wife  creates  separate  property  in  the  wife,  and  is 
valid  as  to  all,  except  existing  creditors  and  bona-jide 
subsequent  purchasers  without  notice.  Such  a  transfer 
cannot  be  attacked  as  fraudulent  and  void  as  to  subse- 
quent creditors  in  an  action  for  the  recovery  of  the 
property  by  the  wife  against  an  officer  who  has  seized 
it  under  execution,  unless  he  proves  not  only  the  issu- 
ing of  the  execution,  the  levy,  and  that  he  was  a  cred- 
itor, but  also  the  rendition  of  a  judgment  upon  his 
debt,  and  that  the  execution  was  issued  upon  the  judg- 
ment. 

In  the  case  of  Kane  vs.  Desmond,  63  Cal.  464,  "the 
defendant  seized  the  piano  in  controversy  from  the  pos- 
session of  plaintiff,  by  an  execution   issued  in   tavor  ot 


§  4^6  EXECUTION PERSONAL  PROPERTY. 

A.  L.  Day  vs.  Thomas  Kane,  and  sold  it  at  execution 
sale  as  the  property  of  Kane  to  satisfy  the  execution. 
Thomas  Kane  was  the  husband  of  plaintiff.  On  the 
trial  of  the  case,  the  court  found  that  the  plaintiff  was, 
at  the  time  of  the  seizure  and  sale,  the  sole  and  exclu- 
sive ow^ner  of  the  property,  in  her  own  right,  and  en- 
titled to  its  possession,  and  that  her  husband  had  no 
right  or  title  to  it."  In  deciding  the  case,  the  Supreme 
Court  say: — 

"The  seizure  of  the  property  was  therefore  wrong- 
ful { Welbnan  vs.  English,  j8  Cal.  S^j;  Lewis  vs. 
Johns,  j4  Id.  62 g;  Van  Pelt  vs.  Little,  14  Id.  ig4), 
and  the  plaintiff  was  entitled  to  recover.  But  the  find- 
ing is  attacked  as  against  the  law  and  the  evidence  in 
this,  that  the  evidence  showed  the  plaintiff's  claim  of 
title  to  the  property  was  founded  on  a  gift  from  her 
husband,  which  was  void  as  to  his  creditors.  But  it 
does  not  appear  that  the  husband  was  indebted  to  any- 
one at  the  time  of  the  gift,  except  to  the  person  from 
whom  he  had  rented  the  piano  under  an  agreement  to 
purchase  it  on  the  installment  plan.  Being  free  from 
debt,  the  husband  had  the  right  to  transfer  his  interest 
in  the  property  to  his  wife  by  gift,  and  the  wife,  under 
the  law,  had  the  capacity  to  take  and  hold  it  in  her  own 
name  and  right.  {Dow  vs.  Gould  &  Curry  S.  M.  Co., 
J I  Cal.  62 g;  Woods  vs.  Whitney,  42  Id.  j^8;  Hig- 
gings  vs.  Higgings,  46  Id.  2^g;  Peck  vs.  Brumviagim, 
J I  Id.  440.)  'I'he  gift  was  complete,  for  the  evidence 
tended  to  show  that  immediately  after  the  husband  had 
rented  tin-  piano  under  the  agreement  to  purchase,  he 
delivered  it  lo  his  wife  as  a  gift,  and  she  accepted  it, 
and  used  it  coiilinuousK'  as  her  separate;  proj^erty  until 
tii<-  liinc  ol  the  seizure.  Now,  this  transfer  by  gift 
was   valiil    and    effectual    between    hersell    and    her   bus- 


EXECUTION I'ERSOXAl,   I'ROl'ERTV.    ^§  417,  418 

Ijaiid  and  all  the  world,  except  existing  creditors  and 
bona-fide  subsequent  purchasers  without  notice.  There 
was  no  proof  that  Day — the  execution  creditor — -was  a 
creditor  of  the  husband  at  the  time  of  the  gift,  and 
there  is  no  presumption  that  the  gift  was  void  as  to 
him  as  a  subsequent  creditor.  (  Wells  vs.  Stout,  g  Cal. 
^jg;  Hussey  vs.  Castle,  41  Id.  2jg.y' 

\  417.    Garnishment  and  Demand.— The 

method  of  serving  a  garnishment  on  execution  upon 
debts,  credits  and  personal  property,  in  the  hands  of  a 
third  party,  is  the  same  as  in  levying  a  writ  of  attach- 
ment upon  similar  property,  and  is  explained  elsewhere 
under  the  head  of  "Attachments."  {Sees.  26J-4,  jgg, 
ante.)  Therefore,  when  a  garnishment  is  served  under 
an  execution,  a  demand  should  be  made  upon  the  per- 
son served  for  the  delivery  to  the  sheriff  of  any  money 
or  other  property  belonging  or  owing  to  the  defendant, 
in  the  possession  or  under  the  control  of  the  person 
served. 

5  418.  Remedy  on  Garnishee's  Failure  to  De- 
liver.—  Under  the  California  Code  provisions,  the 
garnishee  may  be  examined  under  oath  on  proceedings 
supplementary  to  execution  and  compelled  to  apply  to 
the  satisfaction  of  the  judgment  any  property  of  the 
judgment  debtor  in  his  hands,  not  exempt  from  exe- 
cution. If  the  orarnishee  denies  the  debt  or  claims  the 
property  adversely  to  the  debtor,  the  court  may  au- 
thorize the  judgment  creditor  to  institute  an  action  for 
the  recovery  of  the  debt  or  property.  [Sees.  '/i'/-'/20 
Code  Civil  Procedure. ) 

In  the  case  of  Staples  vs.  May,  %']  Cal.  178,  it  was 
held   that  a  liability  of  the  garnishee  to  the  judgment 


§  4^9  EXECUTION PERSONAL   I'KOI'KR'IV. 

debtor,  although  sounding-  wholly  in  tort,  was  the  sub- 
ject of  garnishment,  and  could  be  reached  under  pro- 
ceedings supplementary  to  execution.  And  in  a  more 
recent  case  it  was  held  that  under  the  California  prac- 
tice, if  the  garnishee  on  execution  fails  to  pay  over  to 
the  officer  the  money  in  his  hands,  the  proper  remedy 
of  the  judgment  creditor  is  by  proceedings  supple- 
mentary to  execution.  He  has  no  cause  of  action  in 
assumpsit,  nor  can  he  maintain  a  creditor's  bill  in  equity 
to  reach  the  indebtedness  without  first  exhausting  his 
remedy  by  examination  of  the  judgment  debtor  under 
the  sections  above  cited.  [Herrlich  vs.  Kauffman,  gg 
Cal.  2  J  I.) 

Further  reference  to  the  scope  of  supplementary 
proceedings  for  the  enforcement  of  garnishments  will 
be  found  in  a  later  portion  of  this  chapter.  {Sees. 
420-1,  post. ) 

§  419.     Prior  Assignment  of  Fund  Garnisheed. 

— A  garnishment  does  not  give  the  creditor  precedence 
over  assiofnees  of  the  fund,  when  the  assionment  is 
prior  to  the  service  of  the  garnishment.  (  Walling  vs. 
Miller,  15  Cal.  jg.) 

Plaintiff  delivered  to  defendants  gold  dust,  to  be  by 
them  forwarded  to  San  Francisco,  to  be  there  coined^ 
and  returned.  The  dust  belonged  to  five  persons, 
partners  in  mining,  of  whom  plaintiff  and  one  Coulter 
w(^re  two.  While  the  dust  was  in  the  hands  of  defend- 
ants, Coulter  .sold  to  plaintiff,  for  a  valuable  considera- 
tion, his  interest  in  it,  and  gave  a  receipt  evidencing 
the  sale.  I  )efendants,  after  this,  received  coin  made 
of  the  (lusi.  and  a  creditor  of  Coulter  attached  the 
coin,  by  garnisheeing  defendants.  I  )efendants  had  no 
notice   of   the   sale  tf)   ])laintiff  until   th(^  day  after  the 


EXECUTION PERSONAL  PROPERTY.  §  4^0 

attachment,  when  plaintiff  demanded  Coulter's  share 
of  the  coin:  Held,  that  plaintiff  was  entitled  to  the 
coin  ;  that  the  dust  in  defendant's  hands  was  in  the 
constructive  possession  of  all  the  five  owners,  C.  having 
no  exclusive  interest  in  any  part  until  it  was  converted 
into  coin,  and  divided  among-  the  owners;  that  C.'s 
right  in  the  dust  was  a  chose  in  action,  which  he  could 
assign  by  order  in  favor  of  purchaser  or  assignee  ;  and 
after  such  order,  neither  C.  nor  his  creditors  could 
claim  any  right  to  the  money.  (  Walling  vs.  Miller,  i ^ 
Cal.  sg.) 

§  420.  Supplementary  Proceedings. — In  Cali- 
fornia statutory  provision  is  made  for  the  examination 
of  the  judgment  debtor  or  anyone  indebted  to  him, 
when  an  execution  is  returned  unsatisfied  or  when  the 
debtor  has  property  which  he  unjustly  refuses  to  apply 
toward  satisfaction  of  the  debt.  If  there  be  danger  of 
his  absconding,  he  may  be  required  to  give  bonds  to 
secure  his  attendance  for  examination,  and,  in  default 
of  such  bonds,  he  may  be  committed  to  prison.  Wit- 
nesses may  be  required  to  appear  and  testify  at  the 
examination,  and  "the  judge  or  referee  may  order  any 
property  of  a  judgment  debtor,  not  exempt  from  exe- 
cution, in  the  hands  of  such  debtor  or  any  other  person, 
or  due  to  the  judgment  debtor,  to  be  applied  towards 
the  satisfaction  of  the  judgment.  .  .  .  If  it  appear 
that  a  person  or  corporation  alleged  to  have  property 
of  the  judgment  debtor,  or  to  be  indebted  to  him,  claims 
an  interest  in  the  property  adverse  to  him,  or  denies 
the  debt,  the  court  or  judge  may  authorize,  by  an  order 
made  to  that  effect,  the  judgment  creditor  to  institute 
an  action  against  such  person  or  corporation,  for  the 
recoverv  of  such   interest  or  debt ;   and   the  court  or 


^  421  EXECUTION ^riCRSOXAI.   I'ROl'ER'lV. 

judge  may,  by  order,  forbid  a  transfer  or  other  dispo- 
sition of  such  interest  or  debt,  until  an  action  can  be 
commenced  and  prosecuted  to  judgment.  Such  order 
may  be  modified  or  vacated  by  the  judge  granting  the 
same,  or  the  court  in  which  the  action  is  brought,  at 
any  time,  upon  such  terms  as  may  be  just."  Disobe- 
dience of  any  proper  order  made  in  such  proceeding 
may  be  punished  as  a  contempt.  {California.  Sees, 
y 1 4-^2 1  Code  Civil  Procedure.') 

A  justice  of  the  peace  may  adjudge  a  party  guilty  of 
contempt,  who,  on  proceedings  supplementary  to  exe- 
cution, refuses  to  obey  an  order  directing  him  to  deliver 
to  an  officer  property  which  he  has,  liable  to  execution, 
and  may  direct  him  to  be  imprisoned  until  he  complies 
with  the  order.  In  such  cases  the  jurisdiction  of  the 
justice  is  not  limited  to  a  fine  of  $100  and  one  day's 
imprisonment,  as  provided  in  Sec.  909  Code  Civil  Pro- 
cedure, for  Sec.  1 2 19  Code  Civil  Procedure  applies  to 
justice's  Courts,  and  authorizes  imprisonment,  in  certain 
cases,  until  the  order  is  complied  with.  [Ex  parte 
Latimer,  ^7  Cal.  iji.) 

§  421.      Supplementary     Proceedings— Scope 

of. — In  California  the  statutory  proceedings  supple- 
mentary to  execution  are  intended  to  take  the  place  of 
the  former  creditor's  bill.  {Herrlich  vs.  Kauffnian,  gg 
Cal.  2JI;  Freeman  on  Executions,  Sec.  jg4.) 

Payment  of  a  debt,  secured  by  mortgage,  and  at- 
tached by  garnishment,  may  be  enforced  by  proceedings 
sujjplementar)'  to  execution.  {McGarren  vs.  Garrity, 
6S  Cal.  566.) 

A  patent  right  is  not  subject  to  execution  and  forced 
sale:  but,  upon  proceedings  supjilementary  to  execution, 
th'-  debtor  ma)-  be  ordered  to  assign  his  patent  right  to 


EXECUTION—   I'KRSONAL  I'ROrERl  V.    §§422,  423 

iX  receiver,  who  may  sell  the  same  to  satisfy  the  judg- 
ment. {Pacific  Bank  vs.  Robinso?t,  ^j  Cal.  520;  Ha- 
benicht  vs.  Lissak,  j8  Cal.  j^i  ) 

If,  on  supplementary  proceedings,  a  garnishee  be 
found  to  be  indebted  to  the  judgment  debtor,  the 
court  may  make  an  order  that  he  pay  to  the  plaintiff  the 
amount  of  such  indebtedness,  and  such  order  is,  in 
effect,  a  judgment  on  which  execution  may  issue.  Suit 
may  also  be  brought  upon  the  same  by  the  judgment 
creditor  against  the  garnishee.      {Bronzan  vs.  Drobaz, 

93  ^^i-  ^47-) 
§  422.    Personal  Privilege  or  Right,  How  Sold. 

- — A  mere  personal  privilege,  license  or  right,  such  as 
a  patent  or  a  seat  in  a  stock  and  exchange  board,  is  not 
property  which  may  be  sold  upon  execution.  Upon 
proceedings  supplementary  to  execution,  however,  the 
debtor  may  be  ordered  to  assign  it  to  a  receiver,  named 
and  appointed  in  the  order,  and  empowered  to  sell  the 
same  to  satisfy  the  judgment.  ^Habenicht  vs.  Lissak, 
y8  Cal.  j^i;  Pacific  Bank  vs.  Robinson,  ^7  ^^^-  5^o; 
Lowenberg  vs.  Greenebaum,  gg  Cal.  162.)  The  follow- 
ing cases  also  hold  a  seat  in  a  stock  and  exchange 
board  to  be  property,  subject  to  sale  under  execution 
proceedings.  [Hyde  vs.  Wood,  g^  U.  S.  ^2j;  Powell 
vs.  Waldron,  8g  JV.  Y.  J28;  In  re  Kelc/mm,  i  Fed. 
Rep.  840,  N.  v.;  In  re  Werder,  15  Fed.  Rep.  y8g, 
N.J.)\  while,  on  the  contrary,  such  a  seat  has  been  held 
to  be  a  mere  personal  privilege  incapable  of  forced  sale 
m  93  Pa.  .St.  55,  66;  122  Am.  Law  Reg.  435  (111.)  and 
6  Bissell  526  (III). 

§  423.    Franchise    Not    Liable    to  Execution 

Sale. — A  franchise  is  not  property  capable  of  manual 


§§  424.  425    EXECUTION — PERSONAL  PROPERTY. 

delivery,  and  cannot  be  levied  upon  and  sold  under 
execution  unless  there  be  a  statutory  provision  expressly- 
authorizing  the  sale;  and  when  such  provision  exists, 
the  extent  as  well  as  the  mode  of  levy  and  sale  are 
limited  thereby.  A  statute  authorizing  execution  sale 
of  the  franchise  of  a  corporation  does  not  authorize  the 
sale  of  a  franchise  owned  by  a  private  individual.  A 
provision  in  a  judgment  requiring  the  defendant  to  de- 
liver possession  of  a  franchise  is  not  susceptible  of  ex- 
ecution.     {Gregory  vs.  Blanchard,  g8  Cal.  jii.) 

§  424.    Personal  Property  Mortgaged,  Pledged, 

etc. — When  an  officer  is  directed  to  levy  execution 
upon  personal  property  which,  under  the  California 
Code  provision  {Sec.  2g§^  Civil  Code),  may  be  subject 
to  mortgage  of  record  without  change  of  possession^ 
he  should  endeavor  to  ascertain  if  it  has  been  mort- 
gaged, as,  in  such  case,  it  cannot  be  taken  without  pay- 
ment or  tender  of  the  amount  of  the  mortgage  debt. 
(California.  Sees.  2g68-yo  Civil  Code.)  The  sime 
rules  apply  to  levy  of  execution  upon  personal  property 
mortgaged,  pledged  or  held  for  liens,  as  in  case  of 
levy  of  attachment,  which  subject  is  treated  in  a  pre- 
ceding chapter.     (Sees.  jo4~jio,  ji^-j2i,  ante.) 

§  425.    Proceeds  of   Mortgaged   Property.— 

When  personal  property  mortgaged  is  sold  at  fore- 
closure sale,  the  officer  must  apply  the  proceeds  of  the 
sale  as  follows  :  ( ist)  To  the  repayment  of  the  sum  paid 
to  the  mortgagee,  with  Interest  from  the  dite  of  such 
payment;  and  (2d)  the  balance,  if  any,  in  like  man- 
ner as  the  proceeds  of  sales  under  execution  are  applied 
in  other  cases.      [California.     Sec.  2g'/o  Civil  Code.) 


EXECUTION— PERSONAL  PROPERTY.    §§426,  427 

§  426.    Execution  Sales  of  Vessels.— 'When 

an  attachment  has  been  levied  upon  a  steamer,  vessel 
or  boat,  and  the  attachment  be  not  discharged,  and  a 
judgment  be  recovered  in  the  action  in  favor  of  the 
plaintiff,  and  an  execution  be  issued  thereon,  the  sheriff 
must  sell  at  public  auction,  after  publication  of  notice 
of  such  sale  for  ten  days,  the  steamer,  vessel  or  boat, 
with  its  tackle,  apparel  and  furniture,  or  such  interest 
therein  as  may  be  necessary,  and  must  apply  the  pro- 
ceeds of  the  sale  as  follows  : — 

"i.  When  the  action  is  brought  for  demands  other 
than  the  wages  of  mariners,  boatmen  and  others  em- 
ployed in  the  service  of  the  steamer,  vessel  or  boat 
sold,  to  the  payment  of  the  amount  of  such  wages  as 
specified  in  the  execution. 

"  2.  To  the  payment  of  the  judgment  and  costs,  in- 
cluding his  fees. 

"3.  He  must  pay  any  balance  remaining  to  the  owner, 
or  the  master,  agent  or  consignee,  who  may  have 
appeared  on  behalf  of  the  owner,  or  if  there  be  no 
appearance,  then  into  court,  subject  to  the  claim  of  any 
party  or  parties  legally  entitled  thereto."  {California. 
Sec.  824  Code  Civil  Procedure. ) 

The  notice  of  sale  published  by  the  sheriff  must  con- 
tain a  statement  of  the  measurement  and  tonnage  of 
the  steamer,  vessel  or  boat,  and  a  general  description 
of  her  condition.  [California.  Sec.  82^  Code  Civil 
Procedure.^     Compare: 

Montana.     Sees.  218-g  Revised  Statutes,  1881. 

§  427.    Preferred  Claims   against  Vessels.— 

The  only  preference  given  over  the  judgment  creditor^ 
in  execution  sales  of  vessels,  is  in  the  case  of  claims 
for  wages   of  mariners,  boatmen  and  others  employed 


§§  42<^.  4-9    EXECUTION PERSONAL  l*R01M-:RrV. 

in  the  service  of  the  vessel,  which  must  be  first  paid, 
provided  verified  claims  be  filed  as  provided  in  Sees. 
825-6  C.  C.  P.      (See  Fisher  vs.  White,  8  Cal.  418.) 

\  428.    Purchaser  Entitled  to  Certificate  of 

Sale. — When  the  purchaser  of  any  personal  property, 
capable  of  manual  delivery,  pays  the  purchase  money, 
the  officer  making  the  sale  must  deliver  to  the  pur- 
chaser the  property,  and,  if  desired,  execute  and  deliver 
to  him  a  certificate  of  the  sale.  Such  certificate  con- 
veys to  the  purchaser  all  the  right  which  the  debtor 
had  in  such  property  on  the  day  the  execution  or  at- 
tachment was  levied.  If  the  sale  is  of  personal  prop- 
erty not  capable  of  manual  delivery,  the  officer,  on 
receipt  of  the  purchase  money,  must  execute  and  deliver 
to  the  purchaser  a  certificate  of  sale,  and  such  certifi- 
cate conveys  all  the  right  which  the  debtor  had  in  such 
property  on  the  day  the  execution  or  attachment  was 
levied.     [California.     Sees.  6g8~g  C.  C.  P.) 

A  sheriff's  bill  of  sale  of  personal  property  sold  on 
execution  need  not  contain  all  the  formalities  of  a 
regular  certificate.     {Lay  vs.  Neville,  2^  Cal.  S46.) 

Arizona.     Statutes  i88g,  p.  42,  Sec.  18. 

Colorado.     Sec.  102  Civil  Code,  Acts  188'j,  p.  126. 

Nevada.     Sees.  J2^i~2  General  Statutes,  188^. 

Oregon.     Sec.  2g4  I  Hill's  Codes,  i8g2. 

Washington.     Sec.  ^oj  II  Hills  Codes,  i8gi. 

\  429.    Claim    by  Third  Party.     Ihe  practice 

varies  in  the  different  states  and  territories  in  case 
property  h(!ld  under  execution  is  claimed  by  third  par- 
ties. In  California  if  the  property  be  claimed  by  a 
written  claim,  x'crificd  by  the  oath  of  the  claimant, 
setting  out  his  till''  and  right  to  possession  and  stating 


EXECUTION— I'ERSONAL  PROPERTY.  §  430 

the  y^rounds  of  the  title,  the  sherift"  is  not  bound  to 
keep  the  property  unless  the  person  in  whose  favor  the 
execution  runs,  on  demand,  indemnify  the  sheriff  against 
such  claim  "by  an  undertaking  by  at  least  two  good 
and  sufficient  sureties."  In  Idaho  the  sheriff  is  to  call 
a  jury  of  six  persons,  and  their  verdict  in  favor  of  the 
claimant  justifies  the  officer  in  releasing  the  property. 
In  Montana  and  Nevada  if  the  property  be  claimed 
under  oath,  the  sheriff  must  deliver  it  to  the  claimant, 
unless  the  plaintiff  gives  a  good  and  sufficient  indem- 
nity bond.  In  Oregon  a  jury  of  six  persons  is  to  be 
called  by  the  sheriff,  and,  if  their  verdict  be  in  favor  of 
the  claimant,  the  officer  may  still  proceed  with  the  sale 
if  the  plaintiff  give  him  a  sufficient  indemnity  bond. 
In  Utah,  upon  the  verdict  of  a  sheriff's  jury  of  six  per- 
sons in  favor  of  the  claimant,  he  may  relinquish  the 
levy  unless  a  sufficient  indemnity  bond  be  given.  In 
Arizona  and  Washington,  upon  the  filing  of  the  verified 
claim  and  a  sufficient  bond  by  the  claimant,  the  prop- 
erty must  be  delivered  to  him,  and  a  court  trial  is  had 
as  to  the  right  of  property. 

Arizona.     Laws  of  i88g,  p.  40,  Sec.  10;  Sees.  J166 
yo  Revised  Statutes,  iSSy. 

California.     Sec.  68g  Code  Civil  Procedure. 

Idaho.     Sec.  44J8  Revised  Statutes,  i88y. 

Montana.     Sec.  j20  Code  Civil  Procedure. 

Nevada.     Sec.  220  Code  Civil  Procedure. 

Oregon.     Sec.  1^6  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  ^68  Code  Civil  Procedu7^e. 

Washington.     Sees.  4gi-S  II  Hill s  Codes,  i8gi. 

\  430.    Liability  for  Wrongful  Sale. — An  officer 

is  liable  to  the  owner  of  personal  property  for  the  seiz- 
ure and  sale  thereof  under  an  execution  against  a  third 


s;  431  EXECUTION PERSONAL  PROPERTY. 

party,  and  he  is  not  relieved  from  liability  by  professing 
to  sell  only  the  "right,  title  and  interest"  of  the  de- 
fendant. 

5  431.  Levy  on  Partnership  or  Joint  Prop- 
erty.— The  interest  of  one  partner  in  the  partnership 
chattels  is  the  subject  of  levy  and  sale  by  the  sheriff  on 
an  execution  against  one  of  the  partners:  and,  in  order 
to  effect  a  sale,  he  may  take  possession  of  the  entire 
property  upon  levy  of  either  execution  or  attachment. 
He  can  only  levy  upon  and  sell  the  interest  and  right 
therein  of  the  partner  sued,  subject  to  the  prior  rights 
and  liens  of  the  other  partners  and  the  joint  creditors 
therein.  And  the  same  is  equally  true  in  case  of  per- 
sonal property  owned  by  two  or  more  persons  in  com- 
mon. (  Veach  vs.  Adams,  5/  Cal.  6og;  Clm^k  vs.  CusJi- 
mg,  52  Ca-l.  dry;  Robinson  vs.  Tevis,  j8  Cal.  611; 
Sheehy  vs.  Gi^aves,  ^8  Cal.  44g;  Jones  vs.  Tho7npson,  12 
Cal.  igg.)     In  the  case  last  mentioned  the  court  said: 

"The  interest  of  one  partner  in  partnership  property 
is  such  an  estate  under  our  statute  as  may  be  sold  for 
his  debts;  it  is  a  legal  estate  in  chattels.  It  is  true 
that  as  between  the  partners,  the  interest  of  each  is 
only  the  residuum  of  the  property  left  after  the  settle- 
ment of  the  firm  debts;  and  that  the  rights  of  the  firm 
creditors  and  the  several  partners  are  paramount  to  the 
claims  of  separate  creditors  of  the  firm.  Hut  this  inter- 
est of  the  partner  thus  defined  is  held  by  the  weight 
of  authority  subject  to  levy  for  his  debts.  Story  on 
Part.,  Section  263,  thus  states  the  rule:  'In  cases  of 
this  sort,  therefore,  the  real  position  of  the  parties,  rel- 
atively to  each  other,  seems  to  be  this:  l^he  partner- 
shij;  property  may  be  taken  in  execution  upon  a  sepa- 
rat(;  judgment  and  execution  against  one  partner;  but 


EXECUTION PERSONAL  PROPERTY.  §  43  I 

the  sheriff  can  only  seize  and  sell  the  interest  and  right 
of  the  judgment  partner  therein,  subject  to  the  prior 
rights  and  liens  of  the  other  partners  and  the  joint  cred- 
itors therein.  By  such  seizure  the  sheriff  acquires  a 
special  property  in  the  goods  seized;  and  the  judgment 
creditor  himself  may,  and  the  sheriff  also,  with  the  con- 
sent of  the  judgment  creditor,  file  a  bill  against  the 
other  partners,  for  the  ascertainment  of  the  quantity 
of  that  interest,  before  any  sale  is  actually  made  under 
the  execution.  The  judgment  creditor,  however,  is 
not  bound,  if  he  does  not  choose,  to  wait  until  such  in- 
terest is  so  ascertained,  but  he  may  require  the  sheriff 
to  proceed  to  a  sale,  which  order  the  sheriff  is  bound 
by  law  to  obey.  In  the  event  of  a  sale,  the  purchaser 
at  the  sale  is  substituted  to  the  rights  of  the  execution 
partner,  quoad  the  property  sold,  and  becomes  a  tenant 
in  common  thereof;  and  he  may  file  a  bill,  or  a  bill 
may  be  filed  against  him  by  the  other  partners,  to  as- 
certain the  quantity  of  interest  which  he  has  acquired 
by  the  sale.' 

In  Waldman  vs.  Broder,  lo  Cal.  t^'jZ,  certain  personal 
property  belonging  to  Waldman  and  one  Franck  had 
been  seized  by  Broder,  as  sheriff,  by  virtue  of  an  exe- 
cution in  his  hands  against  the  property  of  Franck;  and 
Waldman,  who  was  a  co-tenant  of  Franck,  having 
brought  his  action  in  replevin  against  the  sheriff,  the 
District  Court  instructed  the  jury  to  the  effect  that  if 
Waldman  and  Franck  were  owners  of  the  property  as 
partners  or  joint  owners  of  it  in  any  other  capacity,  the 
plaintiff,  Waldman,  could  not  recover;  and  the  jury 
having  found  a  verdict  for  the  defendant,  it  was  held  by 
the  Supreme  Court  that  the  instruction  was  correct,  the 
court  observing  that  "if  the  defendant,  as  sheriff,  lev- 
ied on  the  property  while  it  was  the  joint  property  of 


^  43^  EXECUTIOX PERSONAL   I'ROPERTN'. 

plaintiff  and  Franck  (against  the  latter  of  whom  he  had 
an  execution),  this  is  a  justification.  He  had  a  right 
to  levy  on  it,  and  take  it  into  possession  for  the  pur- 
pose of  subjecting  it  to  sale." 

The  case  of  Waldman  vs.  Broder  was  afterwards 
cited  and  approved,  the  language  of  Mr.  Chief  Justice 
Field,  who  delivered  the  opinion  of  the  court,  being  as 
follows:  "V'asquez  and  the  plaintiffs  were  tenants  in 
common  of  the  orain,  and  in  attachinof  the  interest  of 
one  of  them,  the  sheriff  was  justified  in  taking  and  de- 
taining the  possession  of  the  entire  quantity,  though  he 
will  not  be  authorized  to  sell  under  the  execution  on 
the  judgment  which  may  be  recovered  in  that  action 
anything  but  the  undivided  one-third  interest  of  V'^as- 
quez.  The  purchaser  at  the  sale  and  the  plaintiff  will 
then  be  tenants  in  common  of  the  property."  {Ber7ial 
vs.  Hovious,  I J  Cal.  S41.) 

\  432.    Priority  of   Partnership  Creditors.—^ 

It  has  been  frequently  decided  by  the  courts  that  the 
creditors  of  a  partnership  are  entitled  to  preference 
over  the  creditors  of  the  individual  partners  in  the  pay- 
ment of  their  debts  out  of  the  partnership  property,  or 
moneys  arising  therefrom,  without  regard  to  the  prior- 
ity of  attachment  liens.  {Chase  vs.  Steel,  g  Cal.  64; 
Convoy  vs.  Woods,  /j  Id.  626;  Dupuy  vs.  Leavenworth, 
ry  Id.  262;  Burpee  vs.  Bttnn,  22  Id.  icj^.;  Bullock  vs. 
Hubbard,  2j  Id.  ^01:  Commercial  Bank  vs.  Mitchell, 
^8  Cal.  42.)  And  the  same  principle  applies  as  be- 
tween the  creditors  of  st;veral  partnershij:)  firms. 

in  the  case  (jf  Ikillock  vs.  Hubbard,  above  cited, 
liishop  «X:  Fong  were  partners.  i^ishop  ^  Fong  as  a 
partiHM'shij;  was  also  a  memb(,'r  of  two  othc'r  firms  — 
Hishojj,    Fong  ».K-    Stciiart,   and    liishop,    Fong,    Siefert 


EXKCUTIUN PERSONAL   1'R()1M;RI\-.  ^  43^ 

&  Dodsworth.  The  firms  all  failed,  and  their  property 
was  attached  by  creditors.  The  creditors  of  Bishop, 
Long  &  Steuart,  and  Bishop,  Long,  Siefert  &  Dods- 
worth obtained  the  first  attachments,  and  placed  them 
in  the  hands  of  the  sheriff,  before  the  creditors  of 
Bishop  &  Long  placed  theirs  in  his  hands.  The 
sheriff  levied  all  the  writs  on  the  property  in  the  order 
in  which  they  were  placed  in  his  hands.  The  sheriff 
had  in  his  hands  a  sum  of  money  received  from  the 
sale  of  the  property  of  Bishop  &  Long,  to  apply  on 
the  executions  issued  on  judgments  rendered  in  the 
actions.  None  of  the  others,  as  partnership  firms,  had 
any  interest  in  this  money.  The  sheriff  commenced 
an  action  requiring  the  creditors  to  litigate  their  re- 
spective rights  to  the  money.  The  court  below  held, 
and  the  Supreme  Court  affirmed  the  judgment,  that  the 
creditors  of  the  firm  of  Bishop  &  Long  were  entitled  to 
the  money  realized  from  the  sale  in  the  order  of  the 
priority  of  their  several  attachment  liens. 

In  Burpee  vs.  Bunn,  22  Cal.  194,  a  separate  creditor 
of  one  of  several  partners  levied  an  attachment  for 
his  debt  upon  the  partnership  property,  and  afterwards 
made  an  ao^reement  with  a  trustee,  to  whom  his  debtor 
had  conveyed  the  property,  by  which  the  latter  stipu- 
lated to  pay  the  attachment  debt  from  the  proceeds  of 
a  sale  of  the  property,  after  paying  expenses  and  prior 
claims.  Held,  that  neither  by  his  attachment  nor  by 
the  agreement,  did  the  separate  creditor  acquire  any 
title  to,  or  lien  upon,  the  property,  as  against  the  su- 
perior equity  of  a  subsequently  attaching  creditor  of 
the  partnership. 

Where  one  partner  buys  out  his  co-partners,  agreeing' 
to  pay  the  debts  of  the  firm,  the  partnership  property 
rem  lins  bound  for  firm  debts,  just  as  before  the  sale. 


§  432  EXECUTION PERSONAL  PROPERT\'. 

The  lien  of  firm  creditors  attaching  must  be  preferred 
to  the  lien  of  an  individual  creditor  of  the  remaining- 
partner  attaching  first.  A  lien  by  attachment  enables 
a  creditor  to  file  a  creditor's  bill,  without  waiting  for 
judgment  and  execution.  Partners  may  make  a  bona- 
fide  sale  of  their  property  any  time  before  their  credit- 
ors acquire  a  lien;  but  such  sale  cannot  include  a  sale 
directly  or  indirecdy  to  one  of  the  partners,  with  a 
stipulation  that  he  will  pay  the  firm  debts,  there  having 
been  no  credit  given  by  the  individual  creditor  on  the 
strength  of  an  apparent  sole  ownership  in  the  vendee. 
The  fact  that  an  individual  creditor  obtains  judgment, 
issues  execution  and  levies  on  firm  property,  gives  him 
no  right  to  the  property  as  against  firm  creditors  who 
have  not  yet  obtained  judgment.  In  such  cases  of  con- 
flict between  the  individual  and  firm  creditors,  equity 
has  jurisdiction.  No  action  lies  against  the  sherift"  for 
levying  the  execution  of  the  individual  creditor,  and  a 
sale  to  different  purchasers  might  result  in  a  loss  of  the 
property.      {Convoy  vs.  Woods,  ij  Cal.  626.) 

In  Commercial  Bank  vs.  Mitchell,  58  Cal.  42,  an  ac- 
tion against  the  members  of  a  partnership,  upon  a  joint 
and  several  promissory  note,  signed  by  them  individu- 
ally, but  not  with  the  firm  name,  attachment  was  issued 
and  levied  upon  the  interests  of  defendants  in  the  part- 
nership property,  upon  which  an  attachment  previously 
had  been,  and  others  were  subsequently,  levied  in  ac- 
tions against  the  firm.  Subsecjuently,  the  plaintiff 
amendexl  his  comjjlaint  l)y  alleging  the  partnership  of 
the  dc^lendants,  and  thai  the  note  was  a  partnership 
debt;  but  the  action  still  ran  a^ciinst  the  defendants,  as 
individuals,  and  juclgmcnt  was  entered  against  them  in 
that  capacity.  |udgm(-nts  having  been  (Altered  in  all 
the  cases,  the  jjroperty  was  sold  untliM"  execution  in  (Hie 


EXECUTION I'ERSCm'AL  PROPERTY.  §  433 

of  the  cases  against  the  firm,  and  the  proceeds  applied 
in  satisfaction  of  that  execution  and  another  in  a  simi- 
lar case:  Held,  that  the  money  was  properly  applied  on 
the  executions  against  the  firm  in  preference  to  those 
of  the  plaintifl". 

§  433.  Harvested  Grain  Crop— Different  Own- 
ers.— Some  of  the  questions  relating  to  the  duties  of 
sheriffs  in  levying  upon  a  harvested  crop  of  grain,  part 
of  which  is  partnership  property,  and  a  part  belonging 
to  a  stranger  to  the  writ,  and  upon  a  portion  of  which 
there  is  a  chattel  mortgage,  are  plainly  elucidated  in  the 
opinion  of  the  court,  in  the  case  of  Sheehy  vs.  Graves 
58  Cal  449.  In  that  case  Finch  &  Shinn  were  part- 
ners in  a  crop,  and  the  latter  mortgaged  his  interest  and 
took  possession  of  the  whole  crop.  Afterwards,  in  an 
action  by  the  plaintiff  against  Finch  &  Shinn,  an  at- 
tachment was  levied  upon  the  crop  by  the  defendant  as 
sheriff  In  an  action  against  the  defendant  for  failure 
to  make  the  money  on  an  execution  out  of  the  property- 
attached,  the  court  found  that  it  was  agreed  between 
the  plaintiff,  defendant  and  mortagee  that  the  latter 
should  thresh  and  sack  the  grain,  and  that  whatever 
should  belong  to  the  Shinn  interest  should  be  delivered 
to  the  defendant  upon  the  plaintiff's  attachment.  The 
mortgagee  threshed  and  sold  the  grain  and  paid  to  the 
defendant  $319  as  the  part  belonging  to  Shinn,  and  this 
was  applied  on  the  execution,  leaving  a  balance  still 
due.  Upon  an  appeal  from  a  judgment  for  the  defend- 
ant :  Held,  that,  under  the  facts  found,  it  was  the  duty 
of  the  sheriff  to  take  possession  of  the  Shinn  interest 
after  it  was  threshed  and  sacked,  and  to  sell  it  in  the 
manner  required  by  law;  and  that  he  had  no  right  to 
sell  at  private  sale,  or  authorize  another  to  do  so;  and 


§  434  EXECUTION PERSOXAL   rRUl'ER'lW 

that,  therefore,  the  decision  was  arainst  law,  and  the 
judgment  should  be  reversed  upon  the  findings. 

In  deciding  the  case,  the  court  say:  "The  case  de- 
mands some  other  observations.  If  the  crop  raised  on 
the  Sheehy  place  was  partnership  property,  what  right 
had  Jackson  to  take  possession  of  it  to  the  exclusion 
of  Shinn,  the  partner  from  whom  he  had  no  mortgage  ? 
As  against  Jackson,  who  had  a  mortgage  only  of  the 
interest  of  Finch,  which  interest  could  only  be  deter- 
mined after  a  settlement  of  the  accounts  of  the  part- 
nership, where  it  might  have  turned  out  that  Shinn  was 
entitled  to  the  whole  [Civil  Code,  Sec.  2^0^),  Shinn 
had  a  right  to  the  possession,  and  under  these  circum- 
stances it  was  the  duty  of  the  sheriff,  having  in  his 
hands  the  execution  against  both  the  partners,  to  take 
possession  of  all  the  grain  on  the  Sheehy  place.  Shinn 
could  not  be  deprived  of  the  possession  of  the  whole 
b\-  the  assignment  by  his  partner  of  his  interest.  The 
sheriff  neglected  his  dutv  and  was  Qruiltv  of  a  breach 
of  his  bond  as  set  forth  in  the  complaint,  in  not  taking- 
possession  of  the  whole  grain,  at  least  on  the  Sheehy 
place,  as  he  was  ordered  to  do." 

^  434.     Partnership    Sale    or    Dissolution. — 

Where  one  j)artner  bona  fide  sold  the  partnership  prop- 
erty to  satisfy  his  individual  indebtedness,  and  in  an 
action  of  replevin  by  the  purchaser  against  a  creditor 
of  the  firm  who  has  attached  the  property,  after  the 
sal(t  and  (hilivery,  as  the  firm  property,  and  for  a  firm 
(jcbi,  ihc  court  proiKU'ly  rendered  a  judgment  for  the 
j)iirchas(r;  and  it  will  Ik;  presumed  in  suj)port  of  the 
judgment  ihai  the  court  below  found  it  as  a  fact  that 
ihe  other  |)arln(:r  consented  to  and  authorized  the  sale. 
So  long  as  tin-  legal    title   of  the    partnership   propert)' 


EXECUTION PERSONAL   I'ROrERTV.  ^435 

renviins  in  the  co-partners,  a  creditor  of  the  firm  may 
pursue  his  remedy  against  it,  in  an  action  at  law,  in  the 
same  manner  as  aoainst  an  inch\^idual  debtor.  But  if  the 
legal  title  has  been  conveyed  to  a  third  person  bona  fide, 
the  creditor  can  pursue  the  property  only  by  a  bill  in 
equity  to  marshal  the  assets  and  enforce  his  equitable 
lien.      [Stokes  vs.  Stevens,  ^o  Cat.  jgi.) 

The  filing  of  a  bill  by  one  partner  against  his  co- 
partners for  a  dissolution  and  account,  and  praying  for 
an  injunction  and  receiver,  and  an  appointment  of  a 
receiver  by  the  court,  does  not  prevent  a  creditor  from 
proceeding  by  attachment,  and  gaining  a  priority  over 
other  creditors,  until  a  final  decree  of  dissolution  and 
order  of  distribution.  Funds  in  the  hands  of  a  re- 
ceiver, in  a  suit  for  dissolution,  are  therefore  subject  to 
levy  at  any  time  before  a  final  decree  of  dissolution  and 
distribution..     [Adams  vs.   Woods,  g  Cat.  2//..) 

%  435.    Release  of  Execution. — Upon  order  of 

the  plaintiff's  attorney,  or  upon  payment  to  the  officer 
ot  the  amount  due  on  the  execution,  including  costs 
accrued,  the  sheriff  should  release  the  property. 

When  property  has  been  seized  upon  execution  and 
an  appeal  has  been  taken  and  the  stay  bond  filed,  which 
by  statute  "stays  all  further  proceedings  and  releases 
property  levied  upon,"  the  sheriff  should  release  at 
once  without  waiting  for  justification  of  sureties  or 
waiver  of  the  same.      {Savi  Ytien  vs.  McMann,  gg  Cat. 

497-) 

If,  after  an  execution  has  been  levied  on  sufficient 
property  to  satisfy  the  judgment,  the  court  orders  that 
the  judgment  be  not  enforced,  the  order  releases  the 
levy,  and  it  will  not  have  the  effect  of  satisfying  the 
judgment.     {Mulford  vs.  Esttidillo,  22  Cat.  ij2.) 


CHAPTER  XIV 


EXECUTIONS — REAL  PROPERTY. 


§  436.  Levy  upon  Real  Property. 

§  437.  Real  Property — Interests  Subject  to  Sale. 

§  438.  Equity  of  Redemption  Subject  to  Sale. 

§  439.  Interest  of  Purchaser  at  Judicial  Sale  Subject  to  Sale. 

^5  440.  Interest  of  Grantor  after  Trust  Deed  Made. 

^  441.  Mining  Claim  Liable  to  Execution. 

§  442.  When  Owner  Is  Estopped  from  Asserting  Title. 

^  443.  Levy  upon  Larger  Tract  Including  Debtor's  Land. 

§  444.  Notice  of  Sale  under  Execution. 

§  445.  When  and  How  Real  Property  Must  Be  Sold. 

§  446.  Sale  without  Notice. 

^  447.  Purchaser  Not  an  Aggrieved  Party. 

§  448.  Recovery  for  Sale  without  Notice. 

§  449.  Sales  under  Two  or  More  Executions. 

§  450.  Setting  Aside  Sheriff's  Sale. 

§  451.  Irregularities  of  Sale — Remedy. 

§  452.  Justice's  Court  Sale — Transcript. 

§  453.  Sale  to  be  Made  in  Parcels. 

^  454.  .Sale  in  Mass  by  Agreement. 

^  455.  Debtor  May  Direct  Order. 

5^  456.  Setting  Aside  Sale — Showing  Required. 

{5  457.  Unreasonable  Delay  in  Application. 

§  458.  Sheriff  Sales  Not  Credit  Sales. 

^5  459.  Sale  of  Leasehold  Interest — When  Absolute. 

^5  460.  Certificate  of  .Sale. 

^5  461.  'I'itlc  under  Sheriff's  Certificate  of  Sale. 

4^  462.  AnicndnuMit  of  Certificate. 

§  463.  Redemption. 


EXECUTION REAL    PROPERTY. 


436 


§  464 
§  465 
§  466 
§  467 
§  468 
§  469 
§  470 
§  471 
§  472 
§  473 
i  474 
§  475 
§  476 
§  477 
§  478 
§  479 


Resale  on  Refusal  of  Purchaser  to  Pay. 

Recovery  from  Bidder. 

Sale  Passes  Interest  Acquired  after  Levy. 

Title  of  Purchaser  Not  Dependent  on  Sheriti's  Return. 

Title  When  Attachment  Irregular. 

Conveyance  by  Debtor  after  Attachment. 

Purchaser's  Title — Dependent  upon  What. 

Rights  ol  Innocent  Purchaser. 

Relief  of  Purchaser — Caveat  Emptor. 

Relief  in  Discretion  of  the  Court. 

When  Purchaser  Cannot  Recover. 

Where  Misrepresentation  Was  Used. 

Sherifi's  Deed. 

Deed  by  Successor. 

Deed  Relates  Back  to  Attachment. 

Cloud  on  Title. 


§  436.    Levy  upon  Real  Property.— In  levying 

upon  real  property,  the  same  method  is  followed  as 
under  the  writ  of  attachment.  Section  688  of  the  Cali- 
fornia Code  of  Civil  Procedure  provides  that  "all  prop- 
erty, both  real  and  personal,  or  any  interest  in  either 
real  or  personal  property,  may  be  attached  on  execu- 
tion in  like  manner  as  upon  writs  of  attachment'"  (see 
Chapter  XI,  ante),  and  similar  provisions  prevail  in 
other  states.  In  Colorado  the  execution  becomes  a 
lien  upon  all  property  of  the  defendant  from  the  time 
of  delivery  of  the  writ  to  the  sheriff.  (//  Colo.  418.) 
Compare : 

Arizona.     Laivs  of  i88g,  pp.  jg,  40,  Sees.  8,  12. 

Idaho.     See.  44^^  Revised  Statutes,  i88j. 

Colorado.     Sees.  2^2g,  254^  Mills  Ann.  Stat.,  i8gi. 

Montana.     See.  jig  Code  Civil  Procedure. 

ATevada.     Sec.  21  g  Code  Civil  Procedure. 

Oregon.     Sec.  28j  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  s6y  Code  Civil  Procedure. 

Washington.     Sees.  4'/g,  4g6  II  HilTs  Codes,  i8gi. 


^§437-439      KXEcuTiON — real  prophrtn-. 

§  437.    Real   Property— Interests   Subject  to 

Sale.— As  the  term  "real  property"  is  coextensive 
with  lands,  tenements  and  hereditanients  [Cal.  Civil 
Code,  Sec.  /^,  Sub.  5),  and  the  term  "land"  embraces 
all  titles,  legal  or  equitable,  perfect  or  imperfect,  includ- 
ing such  rights  as  lie  in  contract — executory  as  well 
as  executed — ^anv  interest  whatever  in  land,  legfal  or 
equitable,  is  subject  to  attachment  or  execution  levy 
and  sale.      {Fish  vs.  Fozuler,  ^8  Cal.  j/j.) 

The  interest  of  a  person  who  holds  a  contract  to 
purchase  land  may  therefore  be  levied  upon  and  sold. 
The  officer  levies  upon  the  interest  of  the  debtor  in  the 
property.  If  it  turn  out  that  the  debtor  had  no  interest 
therein,  no  property  is  acquired  thereby.  The  notice 
of  levy,  notice  of  sale,  the  certificate  of  sale  given  to 
the  purchaser,  and  the  deed  which  follows  after  the 
expiration  of  the  time  for  redemption,  should  recite 
that  it  is  the  interest  of  the  debtor  which  is  affected  by 
the  several  proceedings.     (See  also  Sec.  ^66,  post. ^ 

%  438.    Equity  of  Redemption  Subject  to  Sale. 

— The  interest  of  a  judgment  debtor  whose  land  has 
been  sold  at  execution  sale,  the  time  for  redemption 
not  having  expired  may  be  subjected  to  execution  sale. 
{McMillan  vs.   Richards,  g  Cal.  365.) 

\  439.     Interest  of  Purchaser  at  Judicial  Sale 

Subject  to  Sale.  "After  the  expiration  of  the  time 
of  redemption,  and  before  .execution  of  the  sheriff's 
(}iiti'A,  the  jHirchaser  has  an  estate  which  is  subject  to  be 
seized  and  sold.  Upon  the  same  principle,  we  can  per- 
ceives no  good  reason  why  the  interest  of  the  purchaser 
mav  not  also  be  seized  and  sold  before  the  expiration 
of  the  time  for  re(lem|)tion."  {Pa^e  vs.  Rogers,  ji 
Cal.  JOS.) 


KXKCUTHJN RKAL    I'KOPEKTW        §§440-443 

§  440.    Interest  of  Grantor  after  Trust  Deed 

Made. —  I  f  a  deed  of  trust  leaves  an  interest  in  the  trust 
property  in  the  grantor,  such  interest  may  be  sold  on 
an  execution  against  him.  {Kennedy  vs.  Nunan,  ^2 
Cal.  326.) 

§  441.    Mining  Claim  Liable  to  Execution.— 

The  interest  of  a  miner  in  his  mining  claim  is  property, 
and  may  be  taken  and  sold  under  execution.  {McKeon 
vs.  Bisbee,  g  Cal.  ij"/.) 

I  442.  When  Owner  Is  Estopped  from  Assert- 
ing Title. —  It  is  a  well-settled  rule  of  all  courts  of 
equity  that  the  owner  of  land  who  stands  by  and  sees 
another  sell  it,  without  making  known  his  claim,  is  for- 
ever estopped  from  setting  up  his  title  against  an  inno- 
cent purchaser.  In  strict  analogy  to  this  rule  it  is  also 
a  familiar  principle  that  one  who  knowingly  and  silently 
permits  another  to  expend  money  on  land,  under  a 
mistaken  impression  that  he  has  title,  will  not  be  per- 
mitted to  set  up  his  right.  {Godej^roy  vs.  Caldwell,  2 
Cal.  4g2.)     See  also  Sec.  28g,  ante. 

§  443.    Levy   upon    Larger   Tract    Including 

Debtor's  Land.^When  the  judgment  debtor  has,  or 
claims,  an  interest  in  only  a  small,  well-defined  parcel 
of  a  much  larger  tract  of  land,  it  is  extremely  irregular, 
to  say  the  least,  to  levy  the  execution  on  his  interest 
in  the  general  tract  instead  of  the  particular  parcel  he 
claims.  Upon  an  irregular  levy  of  this  character,  and 
a  threatened  sale  under  it,  the  owner  in  possession  of 
the  larger  tract  might  perhaps  be  entitled  to  enjoin 
the  sale,  except  of  the  smaller  parcel  claimed  by  the 
judgment  debtor.      {Logan  vs.  Hale,  42  Cal.  64^.) 


§§  444'  445      EXECUTION — real  property. 

§  444.  Notice  of  Sale  under  Execution. — Be- 
fore the  sale  of  real  property  under  a  writ  of  execution, 
under  the  California  practice,  notice  thereof  must  be 
given  as  follows:  By  posting  written  notice  of  time  and 
place  of  sale,  "particularly  describing  the  property,  for 
twenty  days,  in  three  public  places  of  the  township  or 
city  where  the  property  is  situated,  and  also  where  the 
property  is  to  be  sold,  and  publishing  a  copy  thereof 
once  a  week  for  the  same  period,  in  some  newspaper 
published  in  the  county,  if  there  be  one.  When  the 
judgment  under  which  the  property  is  to  be  sold  is 
made  payable  in  a  specified  kind  of  money  or  currency, 
the  notices  of  sale  must  state  the  kind  of  money  or  cur- 
rency in  which  bids  may  be  made  at  such  sale,  which 
must  be  the  same  as  that  specified  in  the  judgment." 
[Sec.  6g2  Code  Civil  Procedure?)  Where  no  kind  of 
money  is  specified,  the  sale  should  be  made  for  "lawful 
money  of  the  United  States."     (See  also  Sec.  ^jy,  ante.) 

Arizona.     Laws  of  i88g,  pp.  40,  41,  Sec.  /j. 

Colorado.     Sec.  2545  Mills  Ann.  Stats.,  i8gi. 

Idaho.     Sec.  4482  Revised  Statutes,  i88y. 

Montana.     Sec.  jj2  Code  Civil  Procedure. 

Nevada.     Sec.  3245  General  Statutes,  188^. 

Oregon.     Sec.  2gi  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  57^  Code  Civil  Procedure. 

Washington.     Sec.  ^00  II  Hill's  Codes,  i8gi. 

%  445.  When  and  How  Real  Property  Must 
Be  Sold. — Under  Section  694  of  the  California  Code 
of  Civil  Procedure  "all  sales  of  real  property  under 
execution,  as  in  the  case  of  personal  property,  must  be 
made  at  auction  to  the  highest  bidder  between  the 
hours  of  nine  and  five,  and  after  sufficient  property  has 
been  sold   to  satisfv  the  writ  in   the  officer's  hands,  no 


EXECUTION REAL    PROPERTY.        §§  446,  447 

more  can  be  sold.  When  the  property  consists  of  sev- 
eral known  lots  or  parcels,  they  must  be  sold  sepa- 
rately; or  when  a  portion  of  the  property  is  claimed  by 
a  third  person,  and  he  requires  it  to  be  sold  separately, 
such  portion  must  be  thus  sold.  The  judgment  debtor, 
if  present  at  the  sale,  may  also  direct  the  officer  as  to 
the  order  in  which  the  various  lots  or  parcels  shall  be 
sold,  if  they  can  be  sold  to  advantage  separately." 
Compare: 

Arizona.     Laws  of  i88g,  p.  41,  Sec.  i^. 

Colorado.     Sec.  2^4^  Mills  Ann.  Stats.,  iSgi. 

Idaho.     Sec.  4484  Revised  Statutes,  188'/. 

Montana.     Sec.  jj4  Code  Civil  Procedure. 

Nevada.     Sec.  ^24'j  General  Statutes,  188^. 

Oregon.     Sec.  2g2  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  ^yy  Code  Civil  Procedure. 

Washington.     Sec.  501  II  Hill's  Codes,  i8gi. 

%  446.  Sale  without  Notice.^ — Under  the  Cali- 
fornia practice,  Sec.  692  Code  of  Civil  Procedure  pre- 
scribes the  manner  in  which  notice  of  sale  must  be 
given,  and  Sec.  693  provides  that  "an  officer  selling 
without  the  notice  prescribed  by  the  last  section,  for- 
feits $500  to  the  aggrieved  party,  in  addition  to  his 
actual  damages."  Similar  provisions  also  exist  in  other 
states.     (See  also  Sees.  44^-8 post.) 

Arizona.     Sec.  igj2  Revised  Statutes,  188^. 

Colorado.     Sec.  2^4^  Mills'  Ann.  Statutes,  i8gi. 

Nevada.     Sec.  3246  General  Statutes,  188^. 

§  447.    Purchaser  Not  an  Aggrieved  Party. — 

The  statutory  provision  relating  to  recovery  of  penalty 
for  officer  selling  real  property  under  execution  without 
notice,  does  not  apply  to  the  purchaser  at  execution 


§§448-450        KXECUTION KKAL    PKOI>ERT\'. 

sale  without  notice.  Such  purchaser  is  not  the  "ag- 
grieved party"  within  the  meaning  of  the  section. 
The  parties  to  the  execution  are  the  "aggrieved  par- 
ties."    {Kelly  vs.  Desmond,  6j  Cal.  5/7.) 

§  448.    Recovery  for  Sale  without  Notice.^ 

When  the  statute  fixes  a  penalty  or  forfeiture  for  mak- 
ing sale  without  notice,  an  action  cannot  be  maintained 
by.  the  defendant  in  an  execution  to  recover  of  the 
officer  the  penalty  prescribed  for  selling  without  proper 
notice,  unless  by  a  sale  so  made  the  complainant  has 
been  deprived  of  his  property.  If  the  attempted  sale 
is  a  nullity  and  passes  no  title,  no  injury  has  been  sus- 
tained, and  no  right  of  action  for  the  forfeiture  accrues. 
No  right  of  property  at  an  execution  sale  vests  in  the 
purchaser  until  he  pays  the  purchase  money,  and  until 
this  is  done,  the  sale  is  not  so  far  perfected  as  to  con- 
stitute the  foundation  of  an  action  against  the  officer, 
to  enforce  a  forfeiture  for  selling  without  the  prescribed 
notice.  {Askeiv  vs.  Ebberts,  22  Cal.  26j.)  See  also 
Sec.  .^^y,  ante. 

\  449.    Sales  under  Two  or  More  Executions. 

— When  an  officer  has  two  or  more  executions  levied 
upon  the  same  property,  he  may  advertise  the  same 
for  sale  in  one  series  of  notices  ;  and  the  notice  should 
describe  the  judgments  and  titles  of  the  different  cases 
under  which  the  Un'ies  were  made. 

§  450.    Setting  Aside  Sheriff's  Sale.— A  court 

of  equit\'  will  not  set  aside  a  sherift's  sale  and  a  deed 
executed  undc:r  it,  in  a  collateral  action  commenced  for 
that  purpose,  by  reason  of  irregularities  in  the  conduct 
ol  the  officer  in  making  the  U'vy  and  sale.  {Boles  vs. 
/oknson,  2^  Cal.  226. ) 


EXECUTION REAL  PROPERTY.        §§451-454 

§   451.    Irregularities   of   Sale— Remedy. — If 

parties  have  any  remedy  under  such  circumstances,  it 
is  by  motion,  properly  made  in  the  court  where  the 
judgment  was  rendered,  to  set  aside  the  sale.     Id. 

§  452.    Justice's  Court  Sale— Transcript. — Real 

estate  of  a  judgment  debtor,  situated  in  the  county 
where  the  judgment  before  a  justice  of  the  peace  was 
rendered,  may  be  sold  on  execution  upon  the  judgment, 
whether  a  transcript  of  the  judgment  be  filed  in  the 
office  of  the  recorder  of  such  county  or  not.  {Camp- 
bell vs.  Wickwaj'-e,  ig  Cal.  14$-)  No  filing  of  such 
transcript  with  the  recorder  is  necessary,  except  as  to 
property  situated  in  a  different  county. 

§  453.    Sale  to  be  Made  in  Parcels.— Statutory 

provision  is  usually  made  that  in  case  of  sale  of  "real 
property,  consisting  of  several  known  lots  or  parcels, 
they  must  be  sold  separately."  {California.  Sec.  6g4 
C.  C.  P.)  A  sale  not  so  conducted  is  not  void,  how- 
ever, but  merely  voidable,  and  on  timely  motion  the 
court  should  ordinarily  set  it  aside,  upon  proper  show- 
ing. While  the  rule,  when  laid  down  by  statute,  is 
controlling  and  should  be  strictly  followed,  it  does  not 
apply  where  each  distinct  parcel  is  first  offered  for  sale 
separately,  and  no  bids  are  received.  In  such  case 
the  property  may  then  be  offered  and  sold  as  a  whole. 
(Ontario  Land  and  Iniprove7nent  Co.  vs.  Bedford,  go 
Cal.  181;  Marston  vs.  White,  gi  Cal.  j/.)  See  also 
Sees.  4S4-7,  post. 

§  454  Sale  in  Mass  by  Agreement.— Fre- 
quently, at  sheriff's  sales,  property  consisting  of  sepa- 
rate parcels  is  sold  in  mass  by  agreement  of  the  plain- 


§§455'  45^         EXECUTION REAL  PROPERTY. 

tiff  and  defendant  in  the  execution,  and  where  such 
sales  are  made,  the  defendant  is  estopped  from  com- 
plaining. It  is  not  always  a  safe  plan  to  pursue,  how- 
ever, as  the  judgment  debtor  in  the  execution  may  have 
other  creditors  who  would  be  injured  by  such  a  course. 

§  455.    Debtor   May  Direct   Order.— Statutory 

provision  is  usually  made  to  the  effect  that  "the  judg- 
ment debtor,  if  present  at  the  sale,  may  direct  the  order 
in  which  property,  real  or  personal,  shall  be  sold,  when 
such  property  consists  of  several  known  lots  or  parcels, 
or  of  articles  which  can  be  sold  to  advantage  sepa- 
rately,"    {California.     Sec.  Sg/j.  Code  Civil  Procedure.) 

§  456.    Setting  Aside  Sale— Showing  Required. 

— A  sale  of  property  under  execution  will  not  be  set 
aside  because  sold  en  masse,  unless  it  appears  that  a 
larger  sum  would  have  been  realized  if  the  property  had 
been  sold  in  parcels  or  that  the  sale  of  less  than  the 
whole  tract  would  have  brought  sufficient  to  satisfy  the 
writ.  {Hudepokl  vs.  Liberty  Hill  W.  and  Mg.  Co.,  g4 
Cal.  588.) 

A  sale  in  mass  of  real  estate  consistino:  of  several 
known  and  distinct  parcels,  at  a  price  greatly  below  the 
actual  value  of  the  property,  cannot  be  sustained  against 
the  objection  of  the  judgment  debtor.  Such  sales  are 
not  absolutely  void,  but  are  voidable,  and  will  be  set 
aside  upon  reasonable  and  proper  application,  when 
there  is  reasonable  ground  for  belief  that  they  were  less 
beneficial  to  the  creditor  or  debtor  than  they  would 
have  been  had  a  different  mode  been  pursued.  [San 
Francisco  vs.  Pixley,  21  Cal.  5/.)  In  the  case  just 
cited,  the  sheriff  sold  a  tract  of  land  belonging  to  the 
corporation,  one  mile  in  length  and  half  a  mile  in  width, 


EXECUTION REAL  PROPERTY.        §§457,458 

which  had,  long  previous  to  the  sale,  been  laid  out  into 
blocks  and  streets,  and  marked  upon  the  official  map, 
and  sold  the  same  in  mass,  for  $360,  while  the  actual 
value  was  $75,000.  The  sale  was  set  aside  on  account 
of  the  manner  in  which  it  had  been  made. 

Where  the  land  sold  under  execution  consisted  of 
separate  but  adjoining  tracts,  but  the  sheriff  and  pur- 
chaser were  ignorant  of  the  subdivisions,  and  the  de- 
fendant  failed  to  inform  the  sheriff  of  the  fact,  or  to 
direct  a  sale  by  parcels :  Held,  that  the  sale  of  the  land, 
in  gross,  was  valid.  {Smith  vs.  Randall,  6  Cal.  57.) 
See  also  Sees,  ^^j,  4^4,  ante;  See.  ^57,  post. 

§  457.    Unreasonable  Delay  in  Application.^ 

A  sale  of  real  property  in  mass  will  be  set  aside  upon 
a  proper  application  of  the  judgment  debtor,  when  made 
in  reasonable  time  after  the  sale.  Such  a  sale,  however, 
will  not  be  set  aside  if  the  application  is  not  made 
within  a  reasonable  time.  It  was  held  in  Vigoureux  vs. 
Murphy,  54  Cal.  346,  that  where  the  application  to 
avoid  the  sale  was  made  more  than  three  years  after 
the  sale  by  a  cross-complaint  to  an  action  of  ejectment 
brought  by  the  successor  of  the  purchaser — that  the 
application  came  too  late,  though  the  sale  should  have 
been  vacated  had  the  application  been  made  immedi- 
ately on  the  return  by  the  sheriff,  and  perhaps  if  it  had 
been  made  within  the  time  allowed  for  redemption. 

§  458     Sheriff's  Sales  Not  Credit  Sales.— A 

purchaser  at  a  sheriff's  sale  acquires  no  right  whatever 
against  the  sheriff  for  property  sold,  unless  at  the  time 
of  the  sale  he  pays  down  in  cash  the  whole  of  the  pur- 
chase money.  A  sheriff,  by  our  laws,  in  selling  prop- 
erty under  execution,  is  not  bound  to  receive  any  bid, 


§  459  EXECUTION— REAL  PROPERTY. 

except  for  cash  on  the  whole  amount  of  the  sale;  and 
having  received  a  bid  with  but  a  portion  of  the  pur- 
chase money  paid  at  the  time,  he  may  disregard  the 
bid,  and  offer  the  property  again  for  sale,  if  the  balance 
of  the  purchase  money  is  not  paid  before  the  return 
day  of  the  execution.  A  sheriff  is  not  bound  to  de- 
mand the  purchase  money  before  setting  aside  the  bid, 
but  the  delay  of  the  purchaser  until  the  return  day  of 
the  execution  to  pay  the  balance  due,  will  be  construed 
into  a  refusal  on  his  part  to  pay  the  amount  of  his.  bid 
upon  the  property.      [^People  vs.  Hays,  5  Cal.  7^.) 

In  an  action  against  a  purchaser  at  sheriff's  sale,  for 
not  paying  the  amount  of  his  bid,  it  cannot  be  set  up 
in  defense  that  no  sufficient  notice  of  the  sale  was 
given.  If  such  be  the  fact,  the  recourse  of  the  pur- 
chaser is  against  the  sheriff.     {Harvey  vs.  Fisk,  g  Cal. 

94-) 

§  459.     Sale   of    Leasehold    Interest— When 

Absolute. — Upon  a  sale  of  real  property,  the  pur- 
chaser is  substituted  to  and  acquires  all  the  right,  title, 
interest  and  claim  of  the  judgment  debtor  thereto;  and 
when  the  sale  is  less  than  a  leasehold  of  two  years'  un- 
expired term,  the  sale  is  absolute.  In  all  other  cases 
the  property  is  subject  to  redemption.      Compare : 

Arizona.     Laws  of  i88g,p.  42,  Sec.  ig. 

California.     Sees,  yoo,  yo2  Code  Civil  Procedure. 

Colorado.     Sec.  2^4"/  Mills  Ann.  Statutes,  iSgi. 

Idaho.     Sec.  44go  Revised  Statutes,  i8Sy. 

Montana.     Sec.  J40  Code  Civil  Proceditre. 

Nevada.     Sec.  2ji  Code  Civil  Pi'ocedure. 
,    Oregon.      Sec.  2gg  I  Hilts  Codes,  i8g2. 

Utah.      Sec.  58 j  Code  Civil  Procedure. 

Washington.     Sec.  ^ji  //  Hill's  Codes,  i8gi . 


EXECUTION REAL  PROPERTY.        §§  460-462 

§  460.  Certificate  of  Sale. — Section  700  of  the 
California  Code  of  Civil  Procedure  provides  that  upon 
the  sale  of  real  property  under  execution,  "the  officer 
must  give  to  the  purchaser  a  certificate  of  sale,  contain- 
ing: (i)  A  particular  description  of  the  real  property 
sold;  (2)  the  price  bid  for  each  distinct  lot  or  parcel; 
(3)  the  whole  price  paid;  (4)  when  subject  to  redemp- 
tion, it  must  be  so  stated.  And  when  the  judgment, 
under  which  the  sale  has  been  made,  is  made  payable 
in  a  specified  kind  of  money  or  currency,  the  certificate 
must  also  show  the  kind  of  money  or  currency  in  which 
such  redemption  may  be  made,  which  must  be  the  same 
as  that  specified  in  the  judgment.  A  duplicate  of  such 
certificate  must  be  filed  by  the  officer  in  the  office  of 
the  recorder  of  the  county." 

Arizona.     Laws  of  i88g,  p.  42,  Sec.  ig. 

Colorado.     Sec.  18^0  General  Statutes,  i88j. 

Idaho.     Sec.  44go  Revised  Statutes,  188^. 

Montana.     Sec.  J40  Code  Civil  Pj^ocedure. 

Nevada.     Sec.  J2^j  General  Statutes,  188^. 

Oregon.     Sec.  2gg  I  Hilts  Codes,  i8g2. 

Utah.     Sec.  ^8j  Code  Civil  Procedure. 

Washington.     Sec.  ^11  II  Hills  Codes,  i8gi. 

§  461.    Title   under   Sheriff's    Certificate   of 

Sale. — The  purchaser  of  real  property  at  a  sheriff's 
sale,  who  receives  the  sheriff's  certificate  of  purchase, 
has  not  a  title  to  the  property,  but  a  lien  on  the  same. 
(Baber  vs.  McClellan,  jo  Cal.  IJS-)  The  effect  of  such 
certificate  is  spent  when  the  defendant  in  the  judgment 
redeems. 

§  462.    Amendment  of  Certificate. — A  sheriff's 
certificate  of  sale,  made  to  the  wrong  person,  may  be 


§§  463-466        EXECUTION REAL  PROPERTY. 

amended,  but  it  cannot  affect  a  redemption  already 
made  by  payment  to  the  person  named  in  the  original 
certificate  of  record.  {Pekin  Mining  Co.  vs.  Kennedy, 
81  Cal.  J5<5.) 

§  463.  Redemption. — The  procedure  for  redemp- 
tion of  real  property  is  treated  at  length  in  the  chapter 
on  that  subject.      {^Secs.  533-542,  post.) 

§  464.    Resale   on    Refusal  of  Purchaser  to 

Pay. — If  at  the  sale  the  purchaser  refuses  to  pay  the 
amount  of  the  bid,  the  property  may  be  offered  for  sale 
again  at  once,  if  there  are  other  bidders  present.  But 
if  the  officer  learns  of  the  refusal  to  make  the  payment 
after  the  time  fixed  for  the  sale  has  passed,  notices  of 
resale  should  be  posted,  and  the  property  re-advertised. 
(See  also  Sec.  458,  ante;  Sec.  465,  post.) 

§  465.    Recovery  from  Bidder. — If  a  purchaser 

refuse  to  pay  the  amount  bid  by  him  for  property  struck 
off  to  him  at  a  sale  under  execution,  the  officer  may 
again  sell  the  property  at  any  time  to  the  highest  bid- 
der, and  if  any  loss  be  occasioned  thereby,  the  officer 
may  recover  the  amount  of  such  loss,  with  costs,  from 
the  bidder  so  refusing,  in  any  court  of  competent  juris- 
diction.     {California.     Sec.  6g5  Code  Civil  Procedure.) 

§  466.    Sale  Passes  Interest  Acquired  after 

Levy. — A  sheriff,  under  an  execution  issued  on  a  judg- 
ment which  is  not  a  lien,  can  only  seize  and  sell  such 
title  and  interest  as  the  judgment  debtor  had  in  the 
land  at  the  time  of  the  levy,  and  such  as  he  acquired 
between  th(.'  time  of  the  levy  and  the  sale. 

If,  after  the  levy  of  an  exc-cution  by  the  sheriff,  on 
public   land,  and   before   the  sale,  the   judgment  debtor, 


I 


EXECUTION REAL  PROPERTY.         §§  467,  468 

being  preemptioner,  pays  for  the  land  levied  on,  and 
obtains  a  certificate  of  purchase,  the  purchaser  at  the 
sheriffs  sale  succeeds  only  to  the  equitable  title  of  the 
judgment  debtor,  who,  when  he  obtains  the  legal  title 
by  means  of  the  patent,  holds  it  in  trust  for  the  pur- 
chaser at  the  sheriff's  sale.  [Kenyan  vs.  Qjiinn,  41 
Cal.  j2^.) 

I  467.    Title  of  Purchaser  Not  Dependent  on 

Sheriff's  Return. — The  tide  of  a  purchaser  of  real 
estate  at  sheriff's  sale  does  not  depend  upon  the  return 
of  the  officer  to  the  writ.  The  purchaser  has  no  con- 
trol over  the  conduct  of  the  officer  in  this  respect. 
{Cloud  vs.  El  Dorado  Co.,  12  Cal.  I2g.)  While  it  is 
undoubtedly  the  duty  of  the  sheriff  to  make  a  return, 
and  while  it  is  important  as  evidence  of  a  permanent 
and  authentic  character  that  he  should  do  so,  the  title 
of  the  purchase  does  not  depend  upon  his  performance 
of  this  duty.  The  purchaser  rests  for  title  upon  the 
judgment,  execution,  levy,  sale  and  deed;  and  he  need 
show  no  more  to  entitle  him  to  whatever  rights  the 
defendant  in  execution  had  in  the  property  sold.  In 
Oregon  and  Washington,  however,  execution  sales 
must  be  reported  and  confirmed  at  the  next  term  of 
court. 

Oregon.     Sec.  2g6  I  Hilf  s  Codes,  i8g2. 

Washington.     Sees.  Soy-S  II  Hill's  Codes,  i8gi. 

%  468.  Title  When  Attachment  Irregular- 
Intervening  Purchaser. — Unless  the  record  shows 
that  the  levy  of  attachment  is  made  in  accordance  with 
the  statute,  a  purchaser  at  execution  sale  acquires  no 
title  as  aeainst  the  crrantee  of  the  attachment  debtor 
by  conveyance  after  attachment  and  before  sale. 
{Schwartz  vs.  Coivell,  yi  Cal.  jo6.) 


§§469-47-         EXECUTION REM,  PROPERTY. 

§  469.  Conveyance  by  Debtor  after  Attach- 
ment.— If  the  judgment  debtor  make  sale  of  real  prop- 
erty after  valid  levy  of  attachment  and  before  judg- 
ment, while  no  judgment  lien  will  attach  to  the 
property,  yet  the  title  of  a  purchaser  at  execution  sale 
will  prevail  over  the  title  of  the  such  grantee  of  the 
debtor.      [Riley  vs.  Nance,  gj  Cal.  20 j. ) 

§  470.  Purchaser's  Title  Dependent  upon 
Valid  Unsatisfied  Judgment. — A  purchaser  at  an 

execution  sale  must  see,  at  his  peril,  that  there  is  a 
valid  judgment  in  existence  and  that  the  same  has  not 
been  vacated  or  satisfied  in  any  way,  directly  or  indi- 
rectly; otherwise  the  power  to  make  the  sale  has  been 
destroyed.     (Billiard  vs.  McArdle,  g8  Cal.  JSS-) 

§  471.      Rights    of   Innocent  Purchaser. — An 

innocent  purchaser  of  property  sold  under  execution, 
who,  as  assignee  of  a  redemptioner's  right  to  a  sheriff's 
deed,  obtains  title  without  notice  of  any  irregularity  in 
the  sale,  will  be  protected  therefrom.  {Hudepohl  vs. 
Liberty  Hill  IV.  and  Mg.  Co.,  g4  Cal.  588.) 

\  472.    Relief  of  Purchaser— Caveat  Emptor. — 

The  doctrine  of  caveat  ejnptor  applies  only  to  sales 
made  upon  valid  judgments,  and  is  usually  invoked 
with  reference  to  sales  upon  execution  issued  against 
the  general  jjroperty  of  a  judgment  debtor.  In  these 
latter  cases  a  defect  of  title  is  no  ground  for  interfer- 
ence with  the  sale,  or  a  refusal  to  pay  the  price  bid. 
Th(.'  jHirchas(-r  tak(!s  upon  himself  all  the  risks  as  to 
the  title,  and  bids  with  full  knowledge  that  in  any  event 
he  only  acquires  such  interest  as  the  debtor  posses.sed 
at  the  dat(^  of  the  levy,  or  the  lien  of  the  judgment, 
and  thai  he  may  possibly  acquire  nothing. 


EXECUTION REAL  PROPERTV.  §  473 

A  somewhat  different  rule  prevails  in  cases  where 
particular  property  is  the  subject  of  sale  by  a  specific 
adjudication,  as  where  the  interest  of  A  in  a  certain 
tract  is  decreed  to  be  sold.  To  the  validity  of  a  decree 
of  this  character,  the  presence  of  A  is  essential ;  and 
where  present,  the  decree  binds  him,  and  is  effectual, 
by  the  sale  it  orders,  to  transfer  his  estate.  A  valid 
decree  in  a  mortgage  case  operates  upon  such  interest 
as  the  mortgagor  possessed  in  the  property  at  the 
execution  of  the  mortgage.  That  interest  may  not 
constitute  a  valid  title — -it  may  not,  in  fact,  be  of  any 
value — and  the  purchaser  takes  that  risk.  To  that 
extent  the  doctrine  of  caveat  emptor  applies  even  in 
those  cases,  and  in  all  cases  of  adjudication  upon  spe- 
cific interests,  but  no  further.  The  interest  specifically 
subject  to  sale,  whatever  it  may  be  worth,  a  purchaser 
is  entitled  to  receive  ;  it  is  for  that  interest  he  makes 
his  bid  and  pays  his  money.  {Boggs  vs.  Margrave,  i6 
Cat.  S59  )     See  also  Sec.  ^y^,  post. 

§  473.    Relief  in  Discretion  of  the  Court. — 

When  there  has  been  a  defect  in  the  proceedings  on 
an  execution  sale,  rendering  the  purchaser's  title  de- 
fective, the  nature  and  extent  of  the  relief  are  matters 
resting  very  much  in  the  sound  discretion  of  the  court. 
As  a  general  rule,  the  purchaser  will  be  released  and 
a  resale  ordered,  or  such  new  or  additional  proceed- 
ings directed  as  may  obviate  the  objections  arising 
from  those  originally  taken,  when  the  consequences 
of  the  mistake  are  such  that  it  would  be  inequitable, 
either  to  the  purchaser  or  to  the  parties,  to  allow  the 
sale  to  stand.  But  when  relief  is  sought  in  one  action 
from  a  purchase  made  upon  a  mistake  of  law  as  to  the 
effect  of  a  decree  rendered  in  another  action,  it  seems 


§§  474-4/6        EXECUTION REAL  RROPERTY. 

that  the  ordinary  rules  as  to  mistakes  of  law  should 
apply ;  and  from  such,  courts  of  equity  seldom  relieve. 
{Goodenozv  vs.  Ewer,  i6  Cal.  461.) 

I  474.    When  Purchaser  Cannot  Recover. — 

In  the  case  mentioned  in  the  preceding  paragraph,  it 
was  held,  also,  that  the  purchasers  cannot  be  reim- 
bursed in  the  amount  bid,  even  though  they  acted 
under  a  mistake  as  to  the  effect  of  the  decree  and  sale 
thereunder ;  that  their  mistake  was  one  of  law,  against 
which  courts  of  equity  seldom  relieve  in  an  independent 
action — the  weight  of  authority  in  the  United  States 
being  not  to  relieve,  unless  the  mistake  be  accompanied 
with  special  circumstances,  such  as  misrepresentations, 
undue  influence  or  misplaced  confidence. 

§  475.    Where  Misrepresentation  Was  Used. 

— Where  a  party  purchased  real  estate  at  an  execution 
sale  upon  the  faith  of  the  representations  of  the  judg- 
ment creditor,  that  his  judgment  was  the  first  on  the 
property,  when,  in  fact,  there  were  prior  incumbrances 
on  it  of  more  than  its  value :  Held,  that  the  purchaser 
should  be  relieved,  and  the  judgment  creditor  should 
be  estopped  from  claiming  an  advantage  resulting  from 
his  own  misrepresentations.  It  makes  no  difference 
whether  the  misrepresentations  were  made  willfully  or 
ignorantly,  or  that  the  action  against  the  purchaser 
was  brought  in  the  name  of  the  sheriff  Ordinarily, 
the  maxim  of  caveat  emptor'-  applies  to  judicial  sales, 
but  it  has  many  limitations  and  exceptions.  [Webster 
vs.  Hawortli,  S  Cal.  21.)     See  also  Sec.  4^2,  ante. 

\  476.      Sheriffs    Deed.--"  If   no    redemption    be 
made  within   six   months  after  the  sale,  the  purchaser,, 


EXECUTION— REAL  I'ROPKRTY.         §§  477-479 

or  his  assignee,  is  entitled  to  a  conveyance ;  or,  if  so 
redeemed,  whenever  sixty  days  have  elapsed,  and  no 
other  redemption  has  been  made,  and  notice  thereof 
given,  and  the  time  for  redemption  has  expired,  the 
last  redemptioner,  or  his  assignee,  is  entitled  to  a  sher- 
iff's deed."     [California.     Sec.  yoj  C.  C.  P.) 

§  477.    Deed  by  Successor. — "When  the  sheriff 

sells  real  estate  under  and  by  virtue  of  an  execution 
or  order  of  court,  he,  or  his  successors  in  office,  shall 
execute  and  deliver  to  the  purchaser,  or  purchasers,  all 
such  deeds  and  conveyances  as  are  required  by  law 
and  necessary  for  the  purpose,  and  such  deeds  and 
conveyances  shall  be  as  valid  in  law  as  if  they  had  been 
executed  by  the  sheriff  who  made  the  sale."  (Cali- 
fornia.    Sec.  loy  Co.  Govt.  Bill,  Statutes  i8gj,  p.  j/j.) 

§  478.    Deed  Relates  Back  to  Attachment.— 

A  sheriff's  deed  executed  after  execution  sale  in  an 
attachment  suit  takes  effect  from  the  date  of  the  attach- 
ment, if  the  levy  was  such  as  to  create  a  lien.  (Riley 
vs.  Nance,  gj  Cat.  20 j.) 

§  479.  Cloud  on  Title.— An  officer  is  bound  to 
levy  upon  the  defendant's  interest  in  real  estate,  when 
instructed  to  do  so,  even  though  the  records  may  show 
prirna-facie  that  the  defendant  has  transferred  his  in- 
terest in  the  property  to  a  third  party.  But  the  party 
who  has  succeeded  to  that  interest  may  have  his  remedy. 
There  are  numerous  decisions  in  our  own  courts  de- 
claring the  right  of  the  party  injured  by  such  a  cloud 
upon  title  to  his  remedy.  In  Pixley  vs.  Huggins,  15 
Cal.  129,  it  is  held  that  a  deed  from  a  sheriff  upon  an 
execution  sale  against  the  vendor  of  plaintiff  would 
have  the  same  effect   in  casting  a  cloud  upon  the  title 


§  479  EXECUTION REAL  PROPERTY. 

as  if  the  deed  were  made  directly  by  such  vendor. 
Such  a  deed  from  the  sheriff,  put  on  record,  would 
create  doubts  as  to  the  validity,  as  against  the  judg- 
ment creditor,  of  the  previous  transfer  to  plaintiff 

The  jurisdiction  of  a  court  to  enjoin  a  sale  of  real 
estate  is  coextensive  with  its  jurisdiction  to  set  aside 
and  order  to  be  canceled  a  deed  of  such  property.  It 
is  not  necessary  for  its  assertion  in  the  latter  case  that 
the  deed  should  be  operative,  if  suffered  to  remain 
uncanceled,  to  pass  the  title,  or  that  the  defense  to  the 
deed  should  rest  in  extrinsic  evidence,  liable  to  loss,  or 
be  available  only  In  equity.  It  Is  sufficient  to  call  into 
exercise  the  jurisdiction  of  the  court  that  the  deed  casts 
a  cloud  over  the  title  of  the  plaintiff.  As  in  such  case 
the  court  will  remove  the  cloud,  by  directing  a  cancel- 
lation of  the  deed,  so  it  will  interfere  to  prevent  a  sale, 
from  which  a  conveyance  creating  such  a  cloud  must 
result.  Where  property  rights  are  thus  involved,  the 
officer  may  resort  for  his  protection  to  proceedings  pro- 
vided for  in  Sec.  689  Code  Civil  Procedure,  and  secure 
Indemnity. 

A  sheriff's  sale  of  real  property  under  a  judgment 
for  the  foreclosure  of  a  lien  would  not  create  a  cloud 
upon  the  title  or  in  any  manner  affect  the  rights  of  one 
owning  the  fee  and  in  the  actual  possession  of  the  land, 
but  not  a  party  to  the  judgment.  ^Archbishop  of  S.  F. 
vs.  Shipman,  6g  Cal.  586.) 


CHAPTER  XV 


EXEMPTIONS  FROM  EXECUTION. 

§  480.  Exemptions,  Generally. 

§481.  Pacific  Coast  States. 

§  482.  California — Personal  Property. 

§  483.  California — Real  Property. 

§  484.  Arizona — Personal  Property. 

§  485.  Arizona — Real  Property. 

§  486.  Colorado — Personal  Property. 

§  487.  Colorado — Real  Property. 

§  488.  Idaho — Personal  and  Real. 

§  489.  Montana — Personal  and  Real. 

§  490.  Nevada — Personal  and  Real. 

§  491.  Oregon — Personal  Property. 

§  492.  Oregon — Real  Property. 

§  493.  Utah  —  Personal  Property. 

§  494.  Utah — Real  Property. 

§  495.  Washington — Personal  Property. 

§  496.  Washington — Real  Property. 

§  497.  Liberal  Construction  of  Statute. 

§  498.  Burden  of  Proof. 

§  499.  Exempt  Property  May  Not  Be  Attached. 

§  500.  Difficulties  in  Determining  Exemptions. 

§  501.  Claim  by  Teamster. 

§  502.  Teamster  Defined. 

§  503.  Laborer  Defined. 

§  504.  Teamster  or  Laborer. 

§  505.  Exemption  of  Stallion. 

§  506.  Tools  and  Implements  of  Trade — Construction. 


§  4^0  EXEMPTIONS    FROM    EXECUTION. 

§  507.  Steam  Thresher — When  Not  Exempt. 

§  508.  Provisions  for  Family  Use. 

§  509.  Salaries  of  Officers,  etc. 

§  510.  Waiver  of  Exemption  by  Officer. 

§  511.  Interest  in  Common. 

§  512.  Exemption  a  Personal  Right. 

§  513.  Debtor  Must  Claim  within  a  Reasonable  Time. 

§  514.  Unreasonable  Delay  in  Claiming  Exemption. 

§  515-  What  Constitutes  a  Reasonable  Time. 

§  516.  Sale  after  Claim  Made. 

§  517.  Claimant  Must  Notify  Officer. 

§  518.  Claim  of  Exemption — How  Made. 

§  519.  Joint  Claims — Effect. 

§  520.  Priority  of  Homestead  over  Mortgage. 

§  521.  Grain  on  Homestead  Land. 

§  522.  Joint  Ownership  in  Property  Claimed. 

§  523.  Partial  Use  of  Building  for  Hotel. 

§  524.  How  Homestead  May  Be  Levied  Upon. 

§  525.  Homestead  Insurance  Exempt. 

§  526.  When  Judgment  Is  Not  a  Lien. 

§  527.  Judgment  No  Lien  upon  Homestead. 

§  528.  Judgment  after  Filing  Homestead. 

§  529.  Levy  on  Homestead  Void. 

§  530.  Cloud  on  Title  of  Homestead. 

§  531.  When  Sale  May  Be  Enjoined. 

§  532.  Insolvency — Exemptions. 

§  480.    Exemptions,  Generally. — In  all  the  states 

and  territories  to  w^hich  this  w^ork  is  particularly  appli- 
cable, provision  is  made  for  the  exemption  from  forced 
sale  of  a  certain  amount  of  personal  property,  consist- 
ing substantially  of  those  articles  without  which  the 
debtor  would  be  unabk'  to  live  and  earn  necessary  sup- 
port for  himself  and  family.  Statutory  provision  is 
also  usually  made  for  the  exemption  of  real  property  to 
a  certain  amount,  for  the  use  of  the  debtor  as  a  home. 
The  method  by  which  the  claimant  may  avail  himself 
of  the  homestead  ex('m|)lion,  the  i)r()visIons  as  to  occu- 


EXEMPTIONS    FROM    EXECUTION.      §§481,482 

-pancy  and  also  as  to  the  value  of  the  property  thus 
protected,  differ  somewhat  in  the  different  states. 

§  481.  Pacific  Coast  States. — The  exemption 
statutes  in  nearly  all  of  the  other  Pacific  States  are 
modeled  after  and  are  very  similar  to  those  of  Califor- 
nia, both  as  to  personal  and  real  property.  The  Cali- 
fornia statute  is  therefore  given  first  in  order,  and  then, 
under  separate  headings,  the  principal  particulars  of 
difference  in  the  other  states  and  territories  are  pointed 
vout,  with  references  to  the  respective  statutes. 

§  482.  California — Personal  Property  Exemp- 
tion.—  "The  following  (personal)  property  is  exempt 
from  execution,  except  as  herein  otherwise  specially 
provided: — 

"i.  Chairs,  tables,  desks  and  books,  to  the  value  of 
$200,  belonging  to  the  judgment  debtor. 

"2.  Necessary  household,  table  and  kitchen  furniture 
belonging  to  the  judgment  debtor,  including  one  sew- 
ing machine,  stoves,  stovepipes  and  furniture,  wearing 
apparel,  beds,  bedding  and  bedsteads,  hanging  pic- 
tures, oil  paintings  and  drawings  drawn  or  painted  by 
any  member  of  the  family,  and  family  portraits  and 
their  necessary  frames,  provisions  actually  provided 
for  individual  or  family  use  sufficient  for  three  months, 
and  three  cows  and  their  sucking  calves,  four  hogs 
with  their  sucking  pigs,  and  food  for  such  cows  and 
hogs  for  one  month. 

"3.  The  farming  utensils  or  implements  of  husbandry 
of  the  judgment  debtor;  also  two  oxen,  or  two  horses, 
or  two  mules,  and  their  harness,  one  cart  or  wagon, 
artd  food  for  such  oxen,  horses  or  mules  for  one 
month;     also,    all    seed,    grain    or  vegetables    actually 


§  4^2  EXEMPTIONS    FROM    EXECUTION. 

provided,  reserved  or  on  hand  for  the  purpose  of 
planting  or  sowing  at  any  time  within  the  ensuing  six 
months,  not  exceeding  in  value  the  sum  of  $200,  and 
seventy-five  beehives,  and  one  horse  and  vehicle  be- 
longing to  any  person  who  is  maimed  or  crippled,  and 
the  same  is  necessary  in  his  business. 

"4.  The  tools  or  implements  of  a  mechanic  or  arti- 
san necessary  to  carry  on  his  trade;  the  notarial  seal, 
records  and  office  furniture  of  a  notary  public;  the 
instruments  and  chest  of  a  surgeon,  physician,  sur- 
veyor or  dentist,  necessary  to  the  exercise  of  their 
profession,  with  their  professional  libraries  and  neces- 
sary office  furniture;  the  professional  libraries  of  attor- 
neys, judges,  ministers  of  the  gospel,  editors,  school- 
teachers and  music  teachers,  and  their  necessary  office 
furniture;  also,  the  musical  instruments  of  music  teach- 
ers actually  used  by  them  in  giving  instructions,  and 
all  the  indexes,  abstracts,  books,  papers,  maps  and 
office  furniture  of  a  seacher  of  records,  necessary  to  be 
used  in  his  profession. 

"5.  The  cabin  or  dwelling  of  a  miner,  not  exceeding 
in  value  the  sum  of  $500;  also,  his  sluices,  pipes,  hose, 
windlass,  derrick,  cars,  pumps,  tools,  implements  and 
appliances  necessary  for  carrying  on  any  mining  oper- 
ations, not  exceeding  in  value  the  aggregate  sum  of 
$500,  and  two  horses,  mules  or  oxen,  with  their  har- 
ness and  food  for  such  horses,  mules  or  oxen  for  one 
month,  when  necessary  to  be  used  in  any  whim,  wind- 
lass, derrick,  car,  pump  or  hoisting  gear,  and  also  his 
mining  claim  actually  worked  ])y  him,  not  exceeding  in 
value  the  sum  of  $1,000. 

"6.  Two  horses,  two  oxen  or  two  mules,  and  their 
harness,  and  one  cart  or  wagon,  one  dray  or  truck, 
one  coupe,  one  hack  or  carriage  for  one  or  two  horses, 


KXEMl'TIONS    FROM     KXPXUTION.  §  482 

bv  the  use  of  which  a  cartman,  drayman,  truckman, 
huckster,  peddler,  hackman,  teamster  or  other  laborer 
habitually  earns  his  living,  and  one  horse  with  vehicle 
and  harness,  or  other  equipments,  used  by  a  physician, 
surgeon,  constable  or  minister  of  the  gospel,  in  the 
legitimate  practice  of  his  profession  or  business,  with 
food  for  such  oxen,  horses,  or  mules  for  one  month. 

"7-  One  fishing  boat  and  net,  not  exceeding  the  to- 
tal value  of  five  hundred  dollars,  the  property  of  any 
fisherman,  by  the  lawful  use  of  which  he  earns  a  liveli- 
hood. 

"8.    Poultry  not  exceeding  in  value  $25. 

"9.  The  earnings  of  the  judgment  debtor  for  his 
personal  services  rendered  at  any  time  within  thirty 
days  next  preceding  the  levy  of  execution  or  attachment, 
when  it  appears  by  the  debtor's  affidavit,  or  otherwise, 
that  such  earnings  are  necessary  for  the  use  of  his 
family  residing  in  this  State,  supported  in  whole  or  in 
part  by  his  labor;  but  where  debts  are  incurred  by  any 
such  person,  or  his  wife  or  family,  for  the  common 
necessaries  of  life,  the  one-half  of  such  earnings  above 
mentioned  are,  nevertheless,  subject  to  execution,  gar- 
nishment, or  attachment  to  satisfy  debts  so  incurred, 

"10.  The  shares  held  by  a  member  of  a  homestead 
association  duly  incorporated,  not  exceeding  in  value 
$1,000,  if  the  person  holding  the  shares  is  not  the  owner 
of  a  homestead  under  the  laws  of  this  State,  All  the 
nautical  instruments  and  wearing  apparel  of  any  mas- 
ter, officer  or  seaman  of  any  steamer  or  other  vessel. 

"  II.  All  moneys,  benefits,  privileges  or  immunities 
accruing  or  in  any  manner  growing  out  of  any  life  in- 
surance on  the  life  of  the  debtor,  if  the  annual  pre- 
miums paid  do  not  exceed  $500. 

"12.   All  fire  engines,   hooks  and  ladders,  with  the 


1.9 


§  4^3  EXEMPTIONS    FROM    EXECUTION. 

carts,  trucks  and  carriages,  hose,  buckets,  implements 
and  apparatus  thereunto  appertaining,  and  all  furniture 
and  uniforms  of  any  fire  company  or  department  or- 
ganized under  any  laws  of  this  State. 

"  13.  All  arms,  uniforms  and  accoutrements  required 
by  law  to  be  kept  by  any  person,  and  also  one  gun,  to 
be  selected  by  the  debtor. 

"14.  All  court  houses,  jails,  public  offices  and  build- 
ings, lots,  grounds,  and  personal  property,  the  fixtures, 
furniture,  books,  papers  and  appurtenances  belonging 
and  appertaining  to  the  jail  and  public  offices  belonging 
to  any  county  or  to  any  city  and  county  of  this  State, 
and  all  cemeteries,  public  squares,  parks  and  places, 
public  buildings,  town  halls,  markets,  buildings  for  the 
use  of  fire  departments  and  military  organizations,  and 
the  lots  and  grounds  thereto  belonging  and  apper- 
taining, owned  or  held  by  any  town  or  incorporated 
city,  or  dedicated  by  such  town  or  city  to  health,  orna- 
ment, or  public  use,  or  for  the  use  of  any  fire  or  military 
company  organized  under  the  laws  of  this  State. 

"  No  article,  however,  or  species  of  property  men- 
tioned in  this  section,  is  exempt  from  execution  issued 
upon  a  judgment  recovered  for  its  price,  or  upon  a 
judgment  of  foreclosure  of  a  mortgage  thereon."  {Cali- 
fornia.    Sec.  6go  Code  Civil  Procedure.^ 

\  483.    California    Real  Property  Exemption. 

— The  hom(:st(;ad,  consisting  of  the  dwelling  house  in 
which  the  claimant  resides  and  the  land  on  which  it  is 
situated,  claimed  by  declaration  in  writing,  acknowl- 
edged and  recorded,  is  only  subject  to  execution  in 
certain  cases  when  it  exceeds  the  amount  of  the  home- 
stead exemijtion,  and  also  "in  satisfaction  of  judgments 
nblained: 


KXK.MI'TIONS    FROM    EXECUTION.  §  483 

"i.  Before  the  declaration  of  homestead  was  filed 
for  record,  and  which  constitute  liens  on  the  premises. 

"2.  On  debts  secured  by  mechanics,  contractors, 
sub-contractors,  artisans,  architects,  builders,  laborers 
of  every  class,  material  men's  or  vendors'  liens  upon 
the  premises. 

"3.  On  debts  secured  by  mortgages  on  the  prem- 
ises, executed  and  acknowledged  by  husband  and  wife, 
or  by  an  unmarried  claimant. 

"4.  On  debts  secured  by  mortgages  on  the  prem- 
ises, executed  and  recorded  before  the  declaration  of 
homestead  was  filed  for  record."  {California.  Sees. 
12 J  J,  12^1,  1262-4  Civil  Code.)  The  amount  of  the 
homestead  exemption  is  $5,000  for  the  "head  of  a 
family,"  and  $1,000  for  any  other  person.  {California. 
Sec.  1^60  Civil  Code.) 

It  will  be  noticed  that  the  recording  of  a  declaration 
of  homestead  at  any  time  before  a  judgment  is  obtained 
and  becomes  a  lien  upon  the  premises,  is  effectual  to 
protect  the  property  from  execution  sale. 

When  the  value  of  the  property  exceeds  the  amount 
of  the  statutory  exemption,  an  appraisement  may  be 
had  upon  petition  of  the  judgment  creditor  after  levy 
of  execution,  followed  by  a  division  of  the  property  or 
an  execution  sale  of  the  whole  under  order  of  court, 
and  payment  to  the  creditor  of  the  surplus  over  the 
statutory  amount.      (Sees.  124^-^g  Civil  Code.) 

In  case  of  the  death  of  a  married  person,  leaving  a 
homestead  of  record,  the  same  vests  in  the  survivor 
and  is  not  subject  to  the  debts  of  either  spouse  at  the 
time  of  the  death.  If  no  homestead  has  been  selected, 
it  is  the  duty  of  the  court  to  set  apart  a  homestead  for 
the  use  of  the  survivor  and  minor  children,  if  any. 
{California.     See.  126^  Civil  Code;  Sees.  1465,  1474-5 


§§  484^486      EXEMPTIONS    FROM    EXECUTION. 

C.  C.  p.)  Ill  either  case,  the  property  retains  and  has 
all  the  homestead  characteristics,  and  is  not  subject  to 
subsequent  debts  of  the  survivor.  [Tyrrell  vs.  Bald- 
win, y8  Cal.  4yo.) 

Liens  existing  aea^inst  the  homestead  at  the  time  of 
the  decease  are  to  be  paid,  either  in  whole  or  part,  out 
of  the  funds  of  the  estate,  and  such  liens  can  only  be 
enforced  for  any  deficiency  after  proof,  allowance  and 
part  payment  out  of  the  general  funds  of  the  estate. 
( California.     Sec.  1475  Code  Civil  Pj^ocedure. ) 

§  484.  Arizona — Personal  Property  Exemp- 
tion.— Every  family  is  entitled  to  personal  property  to 
the  value  of  $1,000,  as  exempt  from  execution,  the  same 
to  be  designated  by  the  head  of  the  family,  or  set  apart 
by  commissioners  in  case  of  disagreement  between  the 
owner  and  the  levying  officer  as  to  the  value.  [Sees. 
I g 56-6 1  Revised  Statutes,  i88y.) 

§  485.    Arizona  —Real  Property  Exemption.— 

A  homestead,  not  confined  to  the  land  on  which  the 
claimant  resides,  and  not  exceeding  $4,000  in  value, 
may  be  selected  by  any  head  of  a  family  by  written 
declaration,  sworn  to  and  recorded,  and  such  property 
is  then  exempt  from  forced  sale.  [Sees.  2071-2,  208^ 
Revised  Statutes,  1887.)  If  the  value  exceeds  the 
homestead  exemption,  proceedings  may  be  taken  to 
subject  the  surplus  to  execution  by  appraisement  and 
division  or  sale  of  the  same.  [Sees.  2078-8J  Revised 
.Statutes,  1887.)  In  case  of  death,  the  property  vests 
in  the  survivor  or  children,  and  is  likewise  protected 
from   forced   sal(;.      [Sec.  2077  Revised  Statutes,  1887.) 

I  486.  Colorado  Personal  Property  Exemp- 
tion.     All  necessary  wearing  apjiarel  and   also  the  fol- 


\ 


EXEMPTIONS    FROM    EXECUTION.  §  486 

lowing  Other  personal  property  is  "exempt  from  levy 
and  sale  upon  any  execution  or  writ  of  attachment  or 
distress  for  rent : — 

"  I.    Family  pictures,  school  books  and  library. 

"2.  A  seat  or  pew  in  any  house  or  place  of  public 
worship. 

"3.   The  sites  of  burial  of  the  dead. 

"4.  All  wearing  apparel  of  the  debtor  and  his  fam- 
ily; all  bedsteads  and  bedding  kept  and  used  for  the 
debtor  and  his  family;  all  stoves  and  appendages  kept 
for  the  use  of  the  debtor  and  his  family;  all  cooking 
utensils,  and  all  the  household  furniture  not  herein 
enumerated,  not  exceeding  one  hundred  dollars  in 
value. 

"5.  The  provisions  for  the  debtor  and  his  family, 
necessary  for  six  months,  either  provided  or  growing, 
or  both,  and  fuel  necessary  for  six  months. 

"6.  The  tools  and  implements,  or  stock  in  trade,  of 
any  mechanic,  miner  or  other  person,  used  and  kept 
for  the  purpose  of  carrying  on  his  trade  or  business, 
not  exceeding  two  hundred  dollars  in  value. 

"7.  The  library  and  implements  of  any  professional, 
man,  not  exceeding  three  hundred  dollars. 

"8.  Working  animals  to  the  value  of  two  hundred 
dollars. 

"9.  One  cow  and  calf,  ten  sheep  and  the  necessary 
food  for  all  the  animals  herein  mentioned,  for  six 
months,  provided  or  growing,  or  both;  also,  one  farm 
wagon,  cart  or  dray,  one  plow,  one  harrow,  and 
other  farming  implements,  including  harness  and  tackle 
for  team,  not  exceeding  fifty  dollars  in  value."  (^Sec. 
2^62  Mills  Ann.  Stats.,  i8gi.) 

Any  of  this  exempt  property,  however,  may  be  sold 
for  taxes  or  on  execution  for  the  purchase  price,  and 


§  4^7  EXEMPTIONS    FROM    EXECUTION. 

tools,  implements,  working  animals,  books  and  stock 
in  trade,  not  exceeding  $300  in  value,  of  any  mechanic, 
miner,  or  other  person  not  being  the  head  of  a  family, 
used  and  kept  for  the  purpose  of  carrying  on  his  trade 
and  business,  are  exempt  from  levy  and  sale  on  any 
execution  or  writ  of  attachment  while  such  person  is  a 
bona-fide  resident  of  the  State.  {^Sec.  2^62  Mills  Ann. 
Stats.,  iSgr.)  If  the  debtor  is  engaged  in  removing 
his  property  from  the  State,  these  exemptions  do  not 
apply  except  to  wearing  apparel,  beds  and  bedding. 
(Sec.  2565  Mills  Ann.  Stats.,  i8gi.) 

If  the  head  of  a  family  die,  desert  or  cease  to  reside 
with  them,  they  are  entitled  to  the  same  exemptions 
enumerated.  (Sec.  2^6j  Mills  Ann.  Stats.,  i8gi.) 
One-half  of  the  wa^es  of  the  debtor,  earned  within 
thirty  days  preceding  the  levy,  are  also  exempt;  pro- 
vided, that  such  exemption  shall  not  exceed  $30,  and 
that  the  debtor  be  the  head  of  a  family  or  the  wife  of 
the  head  of  a  family,  and  such  family  be  dependent 
upon  such  wages  for  support.  (Sec.  2^6'/  Mills  Ann. 
Stats.,  i8gi.)  When  the  debtor  dies  or  absconds,  and 
leaves  his  family,  pension  money  by  law  exempt  to  him 
is  also  exempt  to  his  wife  or  children,  or  either  of  them. 
(Sec.  2^6g  Mills  Ann.  Stats.,  i8gi.) 

I  487.     Colorado    Real    Property  Exemption. 

—A  homestead  valued  at  not  to  t:xceed  $2,000  may 
be  declared  by  the  entry  of  the  word  "homestead"  "in 
the  margin  (jf  his  recorded  title;"  and  the  property  is 
lh(,"n  excinpi  from  execution  only  during  occupancy 
"by  the  owner  or  his  or  .h(;r  famiK."  (Sees.  i6^J  j 
(lencral  Statutes,  /88j.)  Upon  alhdax  It  filed  b\-  a 
judgmc-nt  creditor,  showing  that  the  value  of  the  ]M-op- 
ert\'  exceeds    the    homestead   exemplior,,  execiilion  sale 


KXK.MITION'S    FROM     KX  EC  U'l"  I  OX.       §§488,489 

may   l)e    had  and    surplus  applied    on    the    judgment. 
{Sec.  /6jy  General  Statutes.) 

In  case  of  death  the  homestead  vests  in  the  survivor 
or  minor  children,  and  can  be  held  for  decedent's 
debts  only  in  case  no  such  heirs  remain.  {Sec.  i6j^ 
General  Stattttes. ) 

§  488.  Idaho— Personal  and  Real. — The  per- 
sonal property  exemption  is  substantiailv  the  same  as 
in  California  {Sec.  482,  ante),  the  following  being  the 
principal  points  of  difference:  The  value  of  exempt 
household  furniture,  bedding,  etc.,  is  limited  to  $300; 
farming  tools,  $300;  mechanic's  tools,  $500;  miner's 
cabin,  $500,  and  tools,  $200.  A  miner  is  also  allowed 
a  water  right  not  to  exceed  160  inches  of  water,  and  a 
prospector  may  claim  two  horses  and  equipments  not 
exceeding  in  value  $250.  There  is  no  exemption  of 
poultr)'.     {Revised  Statutes,  iSSy,  Sec.  4480. ) 

The  homestead  exemption  in  Idaho  is  the  same  as 
in  California  {Sees,  joj^-^g  Revised  Statutes,  188^) 
and  similar  provision  is  made  for  a  probate  homestead. 
{Sees.  ^441- g  Revised  Statutes,  188"/.) 

I  489.      Montana—Personal    and    Real. —  Ihe 

personal  property  exemption  is  substantially  the  same 
as  in  California  {Sec.  482,  ante),  but  differs  particularly 
as  follows:  The  debtor  is  allowed  chairs,  tables,  desks 
and  books  to  the  value  of  $100,  besides  his  household 
furniture,  and  also  fifty  domestic  fowls.  A  farmer  is 
allowed  farming  utensils  not  exceeding  in  value  $600, 
and  a  miner  his  cabin  and  tools  not  exceeding  in  value 
$500.  As  to  exemptions,  no  exception  is  made  as  to 
judgments  for  purchase  price.  There  is  no  exemption 
as  to  fishing  boats.  The  exemption  onlv  applies  to 
bona -fide  residents.      {Sec.  j2i  Code  Civil  Procedure.) 


§§490'49I       EXEMPTIONS    FROM    EXECUTION. 

The  homestead  exemption  extends  to  land  not  ex- 
ceeding 1 60  acres  used  for  agricultural  purposes,  and 
the  improvements,  not  included  in  any  town  plot,  city 
or  villaee,  or  not  more  than  one-fourth  of  an  acre  being- 
within  a  town  plot,  city  or  village,  and  the  improve- 
ments owned  and  occupied  by  a  resident  of  the  terri- 
tory; but  the  homestead  shall  not  exceed  $2,500  in 
value.  {Sec.  J22  Code  Civil  P7'ocedure.)  Provision  is 
also  made  for  a  probate  homestead.  [Sec.  IJ4  Pro- 
bate Practice  Act.) 

§  490.  Nevada— Personal  and  Real.—  The  ex- 
emption, as  to  both  personal  and  real  property,  is 
almost  identical  with  that  of  California,  as  set  out  in 
Sees.  482-3  of  this  work,  a7itc.  The  exemption  of 
wages,  however,  is  limited  to  $50,  and  only  when  nec- 
essary for  the  support  of  the  debtor  or  his  family. 
Tables,  desks  and  books  are  only  exempt  to  the 
amount  of  $100.  [Sees.  J2^j,  326^  General  Statutes^ 
r88^;  Statutes,  iSSy,  p.  yS.)  Tenants  in  common 
may  declare  upon  their  respective  estates  in  land. 
{Sees.  53g~542  General  Statutes,  1885.) 

\  491.  Oregon-  Personal  Property  Exemp- 
tion.— The  principal  points  of  difference  in  the  per- 
sonal property  exemption  from  that  of  California  {Sec. 
482,  ante)  are  as  follows:  The  debtor  is  allowed  books, 
pictures  and  musical  instruments  to  the  value  of  %']^, 
wearing  apparel  for  himself  to  the  valuer  of  $100,  and 
for  each  member  of  his  family  to  the  value  of  $50. 
The  exemption  of  tools,  imjjlements,  apparatus,  team, 
vehicle,  harn(^ss  or  library  only  extends  to  the  value  of 
$400,  and  ot  iioiischold  goods  to  $300.  {Sec.  282  I 
Hill's  Codes,   /Scj2.)       This    property   is  exenijjt   from 


EXEMPTIONS    FROM    EXECUTION.      §§492,493 

execution,  if  selected  and  reserved  by  the  judgment 
debtor  or  his  agent  at  the  time  of  the  levy,  or  as  soon 
thereafter  before  sale  thereof  as  the  same  shall  be 
known  to  him,  and  not  otherwise.  The  earnings  of 
the  debtor  within  thirty  days  are  also  exempt  when 
necessary  for  the  use  of  his  family.  {Sec.  jij  I  Hill's 
Codes,  i8g2.) 

§  492.    Oregon— Real  Property  Exemption.— 

In  this  State  "the  homestead,  being  the  actual  abode 
of  and  owned  by  any  family  or  some  members  thereof, 
is  exempt ;  but  such  homestead  shall  not  exceed  fifteen 
hundred  dollars,  nor  exceed  one  hundred  and  sixty 
acres  in  extent,  if  not  located  in  a  town  or  city  laid 
off  into  blocks  and  lots.  If  located  in  any  such  town 
or  city,  then  it  shall  not  exceed  one  block  ;  but  in  no 
instance  shall  such  homestead  be  reduced  to  less  than 
twenty  acres  nor  one  lot — regardless  of  value."  In 
case  the  homestead  exceed  $1,500  in  value,  provision 
is  made  for  the  subjection  of  the  excess  to  execution 
by  appraisal  and  division  or  sale.  {Oregon.  Laws  of 
^Sgs.p-  93-) 

§  493.    Utah — Personal  Property  Exemption. 

— As  to  personal  property  exemption,  the  following  are 
the  particular  points  of  difference  from  the  statute  in 
California  {Sec.  482,  ante):  The  debtor  is  allowed 
household  furniture  to  the  value  of  $300.  A  farmer  is 
allowed  farming  utensils  to  the  value  of  $300:  a  me- 
chanic may  claim  necessary  tools  not  exceeding  $500 
in  value;  and  a  miner  is  entitled  to  his  cabin,  not  to 
exceed  $500  in  value,  and  tools  and  appliances  to  the 
value  of  $200.  One-half  the  earnings  of  the  debtor 
for  personal  services,  within  sixty  days  preceding  the 


§§494-495       EXEMPTIONS    FROM    EXECUTION. 

levy,  are  exempt  when  necessary  for  the  use  of  his 
family.  There  is  no  exemption  as  to  poultry  or  fishing 
boats.  None  of  the  exemptions  authorized  are  for  the 
benefit  of  non-residents  or  persons  about  to  depart  from 
the  territory. 

§  494.    Utah— Real  Property  Exemption. — The 

homestead  exemption  extends  to  land  and  improve- 
ments, owned  by  the  head  of  a  family  and  to  be  selected 
by  him,  not  exceeding  in  value  the  sum  of  $1,000  for 
the  debtor,  and  the  further  sum  of  $500  for  his  wife, 
and  $250  for  each  other  member  of  the  family.  If  the 
home  be  of  greater  value,  the  debtor  may  allow  a  sale, 
in  which  case  he  is  to  receive  in  money  the  value  of 
the  homestead;  or  he  may  elect  to  have  the  property 
partitioned.  {Sec.  570,  SitS.  //,  Code  Civil  Procedure.) 
Provision  is  also  made  for  a  probate  homestead.  {Sec. 
2,  Chap.  5,  Pj'obate  Act.) 

§  495.  Washington  -Personal  Property  Ex- 
emption.— The  following  personal  property  is  ex- 
empt:— 

"  I.   All  wearing  apparel  of  every  person  and  family. 

"2.  All  private  libraries,  not  to  exceed  five  hundred 
dollars  in  value,  and  all  family  pictures  and  keepsakes. 

"3.  I'o  each  householder,  one  bed  and  bedding,  and 
one  additional  bed  and  bedding  for  each  additional 
member  of  the  family,  and  other  household  goods  and 
utensils  and  liirniiure  not  exc(;eding  five  hundred  dollars, 
coin,  in  valiK,-.  '\\\v.  other  hi^usehold  floods  and  uten- 
sils  and  fiirniture  specified  above  shall,  on  the  de- 
mand of  lIic  officer  having  the  execution  or  attachment 
ill  iiand,  be  selected  In'  the  husband  It  jjr(^s(;nt;  it  not 
presf-nt  they  shall   Ik;  selected    1)\'  his   wife,  and  in  case 


KXK.MI'riOXS    FROM     F.XKCUTION.  §  495 

neither  husbcuul  nor  wife,  nor  other  person  entitled  to 
the  exemption  by  having  the  description  of  a  house- 
holder, shall  be  present  to  make  the  selection,  then  the 
sheriff  shall  make  a  selection  of  the  household  goods, 
utensils  and  furniture  equal  in  value  to  said  five  hundred 
dollars  and  shall  return  the  same  as  exempt  by  inven- 
tory, and  such  selection  by  the  sheriff  or  other  person 
described  above,  shall  h^prima-facie  evidence:  ( i )  That 
such  household  goods,  utensils  and  furniture  are  ex- 
empt from  execution  and  attachment;  (2)  that  the  value 
of  the  property  so  selected  is  not  over  five  hundred 
dollars. 

"4.  To  each  householder,  two  cows,  with  their 
calves,  five  swine,  two  stands  of  bees,  thirty-six  domes- 
tic fowls,  and  provisions  and  fuel  for  the  comfortable 
maintenance  of  such  householder  and  family  for  six 
months,  also  feed  for  such  animals  for  six  months;  pro- 
vided, that  in  case  such  householder  shall  not  possess 
or  shall  not  desire  to  retain  the  animals  named  above, 
he  may  select  from  his  property  and  retain  other  prop- 
erty not  to  exceed  two  hundred  and  fifty  dollars,  coin, 
in  value.  The  selection  in  the  proviso  mentioned  shall 
be  made  in  the  manner  and  by  the  person  and  at  the 
time  mentioned  in  Subdivision  3,  and  said  selection 
shall  have  the  same  effect  as  selections  made  under  Sub- 
division 3  of  this  section. 

"5.  To  a  farmer,  one  span  of  horses  or  mules,  with 
harness,  or  two  yoke  of  oxen,  with  yokes  and  chains, 
and  one  wagon;  also  farming  utensils  actually  used  upon 
the  farm,  not  exceeding  in  value  five  hundred  dollars 
in  coin;  also  one  hundred  and  fifty  bushels  of  oats  or 
barley,  fifty  bushels  of  potatoes,  ten  bushels  of  corn, 
ten  bushels  of  peas,  and  ten  bushels  of  onions  for 
seeding  purposes. 


§  495        EXEMPTIONS  FROM  EXECUTION. 

"6.  To  a  mechanic,  the  tools  and  instruments  used 
to  carry  on  his  trade  for  the  support  of  himself  and 
family,  also  material  used  in  his  trade,  not  exceeding 
in  value  five  hundred  dollars  in  coin. 

"  7.  To  a  physician,  his  library,  not  to  exceed  in  value 
five  hundred  dollars  in  coin;  also  one  horse,  with  har- 
ness and  buggy;  the  instruments  used  in  his  practice, 
and  medicines  not  exceeding  in  value  two  hundred  dol- 
lars in  coin. 

"8.  To  attorneys,  clergymen  and  other  professional 
men,  their  libraries,  not  exceeding  one  thousand  dollars 
in  coin  value;  also  office  furniture,  fuel  and  stationery, 
not  exceedinor  in  value  two  hundred  dollars  in  coin. 

"9.  All  firearms  kept  for  the  use  of  any  person  or 
family. 

"10.  To  any  person,  a  canoe,  skiff  or  small  boat, 
with  its  oars,  sails  and  rio-g'ino-  not  exceedinof  in  value 
two  hundred  and  fifty  dollars. 

"11.  To  a  person  engaged  in  lightering  for  his  sup- 
port or  that  of  his  family,  one  or  more  lighters,  barges  or 
scows,  and  a  small  boat,  with  oars,  sail  and  rigging, 
not  exceeding  in  the  aggregate  two  hundred  and  fifty 
dollars,  in  coin,  value. 

"12.  To  a  teamster  or  drayman  engaged  in  that 
business  for  the  support  of  himself  or  that  of  his  family, 
his  team,  consisting  of  one  span  of  horses  or  mules 
or  two  yoke  of  oxen,  or  a  horse  and  mule,  with  harness, 
yokes,  one  wagon,  truck,  cart  or  dray. 

"13.  To  a  person  engaged  in  the  business  of  log- 
ging for  his  support  or  that  of  his  family,  three  yoke  of 
work  cattle  and  their  yokes,  and  axes,  chains,  imple- 
ments for  the  business,  and  camj)  equipments,  not  ex- 
ceeding three  hundred  dollars,  coin,  In  value. 

"  14.    A   sufficient  (piantity  of  hay,  grain    or  \'v,eA  to 


EXEMPTIONS    FROM    EXECUTION.       §§496,497 

keep  the  animals  mentioned  in  the  several  subdivisions 
of  this  chapter,  for  six  weeks.  But  no  property  shall 
be  exempt  from  an  execution  issued  upon  a  judgment 
for  a  price  thereof,  or  any  part  of  the  price  thereof,  or 
for  any  tax  levied  thereon.  Each  person  shall  be  enti- 
tled to  select  the  property  to  which  he  is  entitled  under 
the  several  subdivisions  of  this  act."  {Sec.  ^86  II Hill's 
Codes,  i8gi.) 

Pension  money  is  also  exempt,  and  also  the  personal 
earnings  of  the  debtor  within  sixty  days,  when  neces- 
sary for  the  use  of  his  family.  {Sees.  48^,  ^26  II  Hills 
Codes,  i8gi.) 

§  496.  Washington — Real  Property  Exemp- 
tion.— A  homestead,  not  to  exceed  $1,000  in  value,  is 
exempt  from  attachment  and  execution  to  every  house- 
holder, being  the  head  of  a  family,  while  occupied  as 
such  by  the  owner  or  his  or  her  family.  Such  home- 
stead may  be  selected  at  any  time  before  sale.  {Sec. 
481 II  Hiirs  Codes.)  A  judgment  creditor  may  subject 
the  homestead  to  execution  sale  upon  filing  affidavit 
showing  the  value  to  be  in  excess  of  the  statutory  ex- 
emption; and  after  sale  the  surplus  over  that  amount 
shall  be  paid  to  the  creditor.  {Sec.  484  II  Hill's  Codes.) 
In  case  of  death,  the  surviving  spouse  and  minor 
children  are  entitled  to  the  homestead,  and  it  is  not 
liable  for  debts  of  the  deceased.  {Sec.  482  II  Hill's 
Codes. ) 

§  497.    Liberal  Construction  of  Statute. — The 

courts  uniformly  give  to  the  statute  of  exemptions  a 
liberal  construction,  as  intended  to  enable  the  debtor  to 
follow  his  vocation,  and  earn  a  support  for  himself  and 
family.  {In  the  inatter  of  McManus,  insolvent,  8'J  Cal. 
2g2.) 


§§498-500       KXEMI'TIONS    FROM    KXECUTIOX. 

§  498.  Burden  of  Proof. — The  burden  is  on  him 
who  claims  exemption  of  property  under  the  statute 
to  prove  it.      {Ahwphy  vs.  Harris,  yj  Cal.  ig4.) 

I  499.    Exempt  Property  May  Not  Be  Attached. 

— In  all  these  cases  in  which  the  property  is  declared 
to  be  "exempt  from  execution  and  forced  sale,"  it  is  of 
course  exempt  also  from  attachment,  the  only  purpose 
of  the  latter  writ  being  to  hold  property  '\\\  statu  quo 
until  judgment  and  execution  can  be  had. 

§  500.  Difficulties  in  Determining  Exemp- 
tions.—  Between  the  desire  of  the  plaintiff  to  secure 
his  debt,  and  the  defendant  to  hold  as  much  of  his 
property  as  he  can,  the  officer  often  finds  himself  per- 
plexed as  to  how  he  can  faithfully  discharge  his  duty 
and  do  justice  to  both  contestants.  He  should  exer- 
cise the  same  sound  discretion,  as  well  as  diligence,  in 
securing  property  under  the  writ,  as  though  he  were 
in  pursuit  of  a  claim  of  his  own. 

In  California,  Sec.  690  Code  Civil  Procedure  {Sec. 
482,  ante)  declares  what  personal  property  shall  be 
exempt  from  execution.  In  specifying  the  different 
kinds  of  property,  it  does  not  in  every  instance  state 
the  quantity  that  shall  be  exempt,  and,  hence,  officers 
sometimes  find  themselves  in  a  dilemma  as  to  the  limit 
to  which  they  are  bound  to  go.  The  law  allows  the 
judgment  debtor  to  retain  "necessary  household,  table 
and  kitchen  furniture."  When  certain  household  fur- 
niture was  claimed  as  exempt  from  execution  {Hasivell 
vs.  Parsons,  75  Cal.  266),  the  fact  that  the  number  of 
beds  claimed — six  in  all — was  greater  than  was  required 
tor  the  immediate  and  constant  use  of  the  lamily,  was 
li'ld  to  !)(•  no  objection.       IMalntilf  was  a  larmc^r,  house- 


EXEMPTIONS    FROM    EXECUTION.  §   5OO 

holder  and  head  of  a  family,  having  a  wife  and  three 
children  dwelling  with  him.  The  court  held  that  while 
it  was  possible  that  a  less  number  of  beds  would  have 
accommodated  the  plaintiff  and  his  wife  and  children, 
yet  it  would  be  a  very  narrow  construction  of  the 
statute  to  limit  the  exemption  to  the  number  required 
for  immediate  and  constant  use. 

By  the  first  and  second  subdivisions  of  Sec.  690  of 
the  Code  of  Civil  Procedure,  there  is  exempted  certain 
household  furniture,  wearing  apparel  and  provisions 
for  three  months  for  the  use  of  the  family.  This  ex- 
emption is  for  the  benefit  of  all  classes  of  judgment 
debtors,  whatsoever  may  be  their  vocations,  because 
these  articles  are  essential  to  all  families.  By  reference 
to  the  last  sentence  of  Subdivision  14  of  Sec.  690,  it 
will  be  seen  that  household  furniture  and  any  other 
species  of  property  mentioned  in  that  Section,  may  be 
levied  upon  under  execution  (and  attachment)  issued 
for  its  price  or  purchase  money  thereof 

The  next  succeedinQf  four  subdivisions  of  the  Section 
were  intended  to  exempt  such  articles  as  were  used  by 
the  judgment  debtor  in  earning  a  support  for  himself 
and  family  in  his  particular  vocation.  Hence,  the  third 
subdivision  exempts  the  farming  implements  of  a 
farmer,  and  two  oxen,  or  two  horses,  or  two  mules, 
and  their  harness,  one  cart  or  wagon,  and  food  for 
such  oxen,  horses  or  mules,  for  one  month,  and  all 
seed,  grain  or  vegetables  actually  provided,  reserved 
or  on  hand  for  the  purpose  of  planting  or  sowing  at 
any  time  within  the  ensuing  six  months,  not  exceeding 
in  value  the  sum  of  $200,  etc.  This  exemption  is  to 
enable  the  judgment  debtor  to  earn  a  support  by  farm- 
ing, secures  to  him  the  means  appropriate  to  that  end, 
and  is  intended  to  apply  only  to  oxen,  horses  or  mules. 


^  500  EXEMPTIONS    FROM    EXECUTION. 

suitable  and  intended  for  the  ordinary  work  conducted 
on  a  farm.      [Robert  vs.  Adams,  j8  Cal.  j8j.) 

The  provisions  of  the  third  subdivision  of  Sec.  690 
Code  Civil  Procedure,  with  the  exception  of  that  ex- 
empting a  horse  and  vehicle,  relate  exclusively  to 
exemptions  in  favor  of  judgment  debtors  who  are 
farmers.  [Robert  vs.  Adams,  j8  Cal.  j8j;  Murphy 
vs.  Harris,  77  Cal.  ig4.) 

The  fourth  subdivision  exempts  the  tools  or  imple- 
ments of  a  mechanic  or  artisan,  necessary  to  carry  on 
his  trade,  the  notarial  seal,  records  and  office  furniture 
of  a  notary  public,  the  instruments  and  chests  of  a 
surgeon,  physician,  surveyors  or  dentist,  necessary  to 
the  exercise  of  their  profession,  with  their  professional 
libraries  and  necessary  office  furniture,  etc. 

The  fifth  subdivision  exempts  the  cabin  of  a  miner, 
his  sluices,  pipes,  hose,  windlass,  derrick,  cars,  pump, 
tools,  implements  and  appliances  necessary  for  carry- 
ing on  any  mining  operations,  etc.  And  here  comes  in 
the  question  as  to  what  appliances  may  be  exempt  from 
execution  as  fixtures  belonging  to  the  realty,  and  not 
removable  as  personal  property,  and  this  question  is 
treated  upon  elsewhere  in  this  volume  under  the  title 
of  "  Fixtures."     [Chap.  XX,  post.) 

The  sixth  subdivision  exempts  two  horses,  two  oxen, 
or  two  mules,  and  their  harness,  and  one  cart  or  wagfon, 
one  dray  or  truck,  one  coupe,  one  hack  or  carriage  for 
one  or  two  horses,  by  the  use  of  which  they  "or  other 
lalxjn-r"  habitually  earns  his  living. 

If  an  officer  go  upon  a  ranch  or  farm  to  levy  upon 
the  personal  property  of  the  debtor,  and  find  there,  of 
horses  or  other  animals  attachable,  only  the  number 
that  is  sj)(;c:ifi((l  by  siatut(;  as  exem|)t  from  execution, 
h<'  will  not  be  juslifi('(l  in  refraining  from  levying  upon 


EXEMPTIONS    FROM    EXECUTION.      §§501,502 

them  for  that  reason  alone,  for  it  may  be  that  the  debtor 
may  have  other  property  of  a  similar  kind  elsewhere. 
If  it  is  in  the  officer's  knowledge  that  the  debtor  has 
no  other  animals  of  that  kind  elsewhere,  a  levy  upon 
those  present,  that  are  by  law  exempt,  would  be  a  su- 
perfluous proceeding.  But  if  he  has  been  directed  by 
the  plaintiff  or  his  attorney  to  make  the  levy,  he  should 
do  so,  if  they  or  either  of  them  have  reason  to  believe 
the  debtor  is  not  entitled  to  the  exemption.  He  may 
require  an  indemnity  bond  if  there  be  any  doubt  in  his 
mind,  and  will  be  protected  by  the  bond. 

Where  the  debtor  has  several  horses,  and  two  are 
exempt  from  execution,  he  may  elect  which  shall  be  ex- 
empt ;  but  if  he  has  some  not  in  the  jurisdiction  of  the 
officer,  and  so  beyond  the  reach  of  the  execution,  and 
there  is  only  one  within  the  reach  of  the  execution,  he 
cannot  defeat  the  creditor's  levy  on  that  one  by  elect- 
ing to  keep  it.  Such  a  course  would  be  using  the 
statute,  which  was  intended  for  beneficent  purposes,  as 
a  means  of  evasion  and  fraud. 

§  501.    Claim  by  Teamster. — Where  two  mules 

are  claimed  as  exempt  from  forced  sale  on  execution,  it 
must  be  shown  that  the  party  claiming  the  mules  habit- 
ually earned  his  living  by  the  use  of  the  animals  in 
question,  or  that  he  is  one  of  the  persons  mentioned 
in  the  statute.     {^Calhoun  vs.  Knight,  lo  Cal.  jg4.) 

The  wagon  sheet  and  driving  lines  of  a  teamster  are 
exempt  "when  useful  and  convenient  to  use"  with  the 
horses  expressly  exempted  by  the  statute,  {In  re  Bozv- 
man,  8j  Cal.  i^j. )     See  also  Sees.  501-2,  504,  post. 

\  502.  Teamster  Defined. —  In  the  sense  of  the 
statute  of  exemptions,  one  is  a  "teamster"  who  is  en- 


20 


§§  503>  5*^4      EXEMPTIONS    FROM    EXECUTION. 

gaged  with  his  own  team  or  teams  in  the  business  of 
teaming,  viz.,  in  the  business  of  hauHng  freight  for 
others  for  a  consideration,  by  which  he  habitually  sup- 
ports himself  and  family,  if  he  has  one.  While  a  team- 
ster need  not  drive  his  team  in  person,  yet  he  must  be 
personally  engaged  in  the  business  of  teaming  habitu- 
ally, and  for  the  purpose  of  making  a  living  by  that 
business.  If  a  carpenter  or  other  mechanic  who  occu- 
pies his  time  in  labor  at  his  trade,  purchases  a  team  or 
teams,  and  also  carries  on  the  business  of  teaming  by 
the  employment  of  others,  he  does  not  thereby  become 
a  "teamster"  in  the  sense  of  the  statute.  {Brusie  vs. 
Griffith,  J4  Cal.  J02.) 

§  503.  "Laborer"  Defined. — By  "other  laborer," 
as  used  in  the  sixth  subdivision  of  Sec.  690  Code  Civil 
Procedure,  is  meant  one  who  labors  by  and  with  the 
aid  of  his  tea77i,  and  not  by  the  aid  of  a  pick  and  shovel, 
or  the  implements  of  other  trade  or  vocation.  [Brusie 
vs.  Griffith,  j4  Cal.  J02.) 

§  504.  Teamster  or  Laborer. — Where  B,  who 
claimed  two  horses,  etc.,  as  exempt,  was  a  clerk  in  a 
store,  at  a  stated  salary,  and  had  purchased  said  horses, 
etc.,  mainly  to  furnish  employment  for  his  son,  who  was 
seventeen  years  old,  and  by  whom  exclusively  the  team 
was  used  habitually  in  hauHng  freights  for  said  store  and 
for  other  parties,  and  in  delivering  goods  from  said 
store  to  customers,  all  of  which  was  done  for  the  bene- 
fit of  I>  and  his  family:  Held,  that  B  was  neither  a 
teamster  nor  oth('r  laborer  in  the  statutory  sense. 
{Brusie  vs.  GriffiitJi,  J4  Cal.  J02.) 

In  the  cas(;  of  Dove  vs.  Nunan,  62  Cal.  399,  the 
j)ro])(rly  in  coiilroversy  consisted   of  two  horses  and  a 


I 


EXEMPTIONS  FROM  EXECUTION.        §  505 

wagon,  which  were  claimed  by  the  plaintiff  as  exempt 
from  execution.  The  court  said:  "The  court  below 
found  that  'the  plaintiffs  were  and  are  a  firm  doing 
business  as  coal  dealers.  .  .  ,  That  the  plaintiffs 
used  the  property  sued  for  as  teamsters.  That  they 
hauled  coal  and  other  commodities  for  others,  for  hire 
and  pay,  and  received  money  therefor,  all  of  which 
was  expended  in  the  support  of  plaintiffs  and  their 
families,  all  of  whom  resided  in  the  same  house  and 
ate  at  the  same  table.  That  as  coal  dealers,  and  for 
the  purpose  of  delivering  coal  at  retail  and  in  small 
quantities,  the  plaintiffs  had  and  owned  a  smaller  cart, 
truck  or  wagon,  and  one  other  horse.  That  the  only 
use  which  the  plaintiffs  made  of  the  wagon  and  horses 
— the  subject  of  this  suit — for  themselves,  other  than 
as  teamsters  for  pay,  was  in  hauling  coal  and  wood 
from  plaintiffs  coal  yard,  and  other  coal  and  wood 
yards,  to  the  place  where  the  plaintiffs  retailed  the  same, 
as  above  found  herein." 

"The  fact  that  the  plaintiffs  used  the  horses  and 
wagon  in  question  as  teamsters  for  hire,  and  that  they 
expended  the  money  thus  received  in  the  support  of 
themselves  and  their  families,  did  not  exempt  the  prop- 
erty from  execution.  In  order  to  entitle  a  party  to 
claim  as  exempt  from  execution  two  horses,  etc.,  under 
the  sixth  subdivision  of  Sec.  690,  he  must  show  that 
he  is  a  cartman,  drayman,  truckman,  huckster,  peddler, 
teamster,  or  other  laborer,  and  that  he  habitually  earns 
his  living  by  the  use  of  such  horses,  etc.  {Brttsie  vs. 
Griffith,  j4  Cal.  J02.)"      See  also  Sees.  ^00-2,  ante. 

\  505.    Exemption  of  Stallion. — In  the  case  of 

McCue  vs.  Tunstead,  65  Cal.  506,  the  Supreme  Court 
savs: — 


§  505        EXEMPTIONS  FROM  EXECUTION. 

"The  court  found  in  substance  that  the  plaintiff  was 
the  owner  and  in  the  possession  of  a  farm  of  about  one 
hundred  and  fifty  acres  of  land,  which  he  cultivates  for 
raising  grain,  etc.,  and  that  the  horse  which  this  action 
w^as  brouofht  to  recover  was  used  as  a  work  horse  on 
said  farm — sometimes  singly  and  sometimes  doubly. 
It  is  also  found  that  the  plaintiff  is  the  publisher  of  a 
weekly  newspaper  and  the  proprietor  of  patent  medi- 
cines, although  his  main  reliance  for  support  is  upon 
his  farm,  'and  almost  the  entire  income  from  that  is 
from  the  services  of  said  horse  as  a  stallion  and  the 
agistment  of  mares  for  breeding  to  him.' 

"The  plaintiff  is  the  owner  of  other  horses  pledged 
for  a  debt  owing  by  him,  and  in  the  possession  of  the 
pledgee. 

"In  addition  to  'the  farming  utensils  or  implements 
of  husbandry  of  the  judgment  debtor,'  the  law  exempts 
from  execution  tzvo  horses.  {Code  Civil  Procedure, 
6gOy  Subdivision  j.)  The  findings  establish  beyond 
doubt  that  the  plaintiff  employed  this  horse  in  hus- 
bandry. He  was  a  farm  horse  in  the  same  sense  that 
the  plows,  harrows  and  wagons  used  on  the  farm  were 
utensils  or  implements  of  husbandry.  Conceding  that 
some  of  the  uses  to  which  the  horse  was  put  were  not 
strictly  in  the  line  of  husbandry,  he  was,  nevertheless, 
one  of  two  horses  owned  by  the  judgment  debtor,  and 
employed  by  him  in  husbandry.  The  law  does  not 
specify  how  much  or  what  use  shall  be  made  of  'the 
(arming  utensils  or  imj)l(;mcnts  of  husbandry,'  or  of  the 
two  horses  exempted  from  execution.  They  are  ex- 
empt because  owned  by  a  judgment  debtor  engaged  in 
husbandry.  And  in  order  to  make  them  exempt,  it  is 
not  necessary  that  th(.'  owner  of  them  should  devote 
himself  exclusively  lo  liusbandrN'.      Such  is  not  the  Ian- 


KXEMPTIONS    FROM    EXECUTION.       §§  506,  507 

guage  of  the  law.  It  does  not  say  the  farming  utensils, 
etc.,  of  a  husbandman  or  farmer  shall  be  exempt,  but 
the  farming  utensils,  etc.,  of  husbandry;  that  is,  uten- 
sils, etc.,  employed  by  the  judgment  debtor  in  hus- 
bandry or  farming.  This  is  the  obvious  meaning  of 
the  language,  and  we  do  not  feel  at  liberty  to  hold  that 
when  a  judgment  debtor  shows  that  he  is  carrying  on 
a  farm,  and  has  but  two  horses  which  he  uses  in  farm- 
ing, that  they  are  not  exempt  because  he  sometimes 
uses  them  for  some  other  purposes.  That  would  ne- 
cessitate the  importation  of  something  into  the  law 
which  it  does  not  now  contain." 

In  an  earlier  case  it  was  also  held  that  a  stallion, 
not  used  as  a  work  horse  on  a  farm,  but  kept  for  the 
service  of  mares,  is  not  exempt  from  execution. 
{Briggs  vs.  McCullough,  j6  Cal.  ^42. ) 

§  506.  Tools  and  Implements  of  Trade — Con- 
struction.— When  the  statute  exempts  "tools  and 
implements,"  the  word  "implement"  is  broader  than 
the  word  "tool,"  and  includes  any  instrument  needed 
and  used  for  the  purpose  of  carrying  on  the  trade  or 
business  of  the  debtor.      (/?/  re  Mc Mantis,  Sy  Cal.  2g2. ) 

A  turning  lathe  and  appliances,  necessary  to  a  me- 
chanic and  machinist  in  his  business,  is  exempt  from 
execution.      {Matter  of  Robb,  gg  Cal.  202.) 

A  jeweler's  safe  used  in  his  business  as  a  jeweler  and 
watch  repairer  is  exempt  from  execution,  under  the 
California  statute.  {In  the  matter  of  McMamis  In- 
solvent, Sy  Cal.  2g2.) 

§  507.    Steam  Thresher— When  Not  Exempt. 

— An  expensive  steam-threshing  machine  and  outfit, 
owned  in  common  by  several  farmers  and  used  by  them 


§§508-510      EXEMPTIONS    FROM    EXECUTION. 

upon  their  own  lands  and  also  in  doing  work  for  oth- 
ers for  hire,  is  not  exempt  as  "farming  utensils."  {Iv 
re  Baldwin,  7/  Cal.  J4.) 

§  508.    Provisions  for  Family  Use. — That  the 

courts  incline  to  a  very  liberal  construction  of  the  ex- 
emption laws  is  evident  in  a  recent  decision  by  which 
it  would  seem  that  fire  wood  actually  provided  for  fam- 
ily use  may  be  included  as  "provisions  for  family  use." 
(^In  the  matter  of  Bowman,  Insolvent,  8j  Cal.  i^j.) 

§  509.    Salaries  of  Officers,  etc. — Moneys  in  the 

hands  of  federal,  state  or  county  officers  are  exempt 
from  execution  or  garnishment  against  a  defendant  to 
whom  they  may  be  due.  {Free7nan  on  Executions, 
Sec.  IJ2.) 

§  510.  Waiver  of  Exemption  by  Officer. — Al- 
though in  California  the  law  provides  that  "the  earn- 
ings of  the  judgment  debtor  for  his  personal  services 
rendered  at  any  time  within  thirty  days  next  preceding 
the  levy  of  execution  or  attachment,"  may  be  claimed 
as  exempt  from  execution,  when  such  earnings  are  nec- 
essary for  the  use  of  his  family,  etc.,  there  is  recorded, 
in  59  Cal.  107,  a  case  wherein  a  county  officer's  monthly 
salary  was  applied  on  an  execution.  It  would  seem, 
however,  that  in  that  case  the  auditor  and  treasurer 
must  have  been  in  sympathy  with  the  judgment  creditor, 
for  otherwise  the  sheriff  might  easily  have  been  frus- 
trated in  making  the  levy.  And,  even  when  the  war- 
rant for  the  debtor's  salary  came  into  the  sheriffs 
hands,  the  sale  thereof  might  have  been  prevented  if 
the  (Ifbtor  had  claimed  iiis  privilege  of  exemption. 
Instead  of  doiii''    so,  however,  he   allowed    the  sale   to 


.      KXK.MPTIONS    FROM    EXECUTION,  §51^ 

go  on  without  protest,  and  received  from  the  sheriff 
the  overplus  of  the  sale.  The  debtor  subsequently 
made  application  for  a  writ  of  mandamus  to  the  county 
treasurer,  to  compel  him  to  issue  another  warrant  for 
the  salary,  but  the  application  was  refused.  Having 
had  one  warrant  drawn  and  delivered  to  his  lawfully 
constituted  agent,  the  sheriff,  and  having  obtained  the 
benefit  of  the  proceeds  of  the  sale,  by  payment  of  judg- 
ments against  him,  he  had  not  the  right  to  have  another 
warrant  for  the  same  services  drawn  and  delivered  to 
him,  and  obtain  double  payment  from  the  county.  The 
court  held  that  "the  debtor  must  have  known  all  the 
facts  as  to  the  levy,  seizure  and  sale  of  the  warrant  by 
the  sheriff,  and  his  conduct  was  a  ratification  of  the 
acts  of  the  sheriff,  though  the  warrant  could  not  be 
levied  on  under  a  writ  of  execution." 

The  above  construction  of  the  exemption  law  secures 
— as  the  Legislature  intended  it  should — to  the  several 
classes  mentioned,  provision  for  earning  their  support. 

§  511.  Interest  in  Common. — Personal  property 
which  is  exempt  from  forced  sale  on  execution  is  none 
the  less  exempt  because  the  judgment  debtor  owns  an 
undivided  interest  in  it  in  common  with  a  stranger  to 
the  judgment;  and  where  a  sheriff,  on  ascertaining  that 
property  which  has  been  attached  is  exempt  from  exe- 
cution, refuses  to  release  it  without  an  undertaking,  he 
exceeds  his  authority  and  violates  his  duty.  Such  an 
undertaking  is  void  for  want  of  consideration,  and  for 
having  been  illegally  exacted  by  the  sheriff  under  color 
of  his  office.  It  is  the  duty  of  the  sheriff  to  release 
exempt  property,  without  an  undertaking.  [Servanti 
vs.  Lusk,  ^j  Cal.  2 J 8.) 


§§512-515      EXEMPTIONS    FROM    EXECUTION.      . 

§  512.  Exemption  a  Personal  Right. — The  ex- 
emption of  property  from  sale  on  execution  is  a  per- 
sonal right  which  the  debtor  may  waive  or  claim  at 
his  election,  and  where  the  party  fails  to  demand  it,  he 
thereby  waives  his  privilege.  {Borland  vs.  O Neal, 
22  Cal.  ^04;  Gavitt  vs.  Doub,  2j  Cal.  yS.) 

§  5 1 3.  Debtor  Must  Claim  within  a  Reason- 
able Time. — An  execution  debtor  who  has  more  horses 
than  the  number  exempt  by  law,  may  elect  which  he 
claims  as  exempt,  but  such  election  must  be  made  and 
the  officer  notified  thereof  either  at  the  time  of  the 
levy  or  within  a  reasonable  time  thereafter,  or  the  right 
to  elect  will  be  deemed  waived,  [Gavitt  vs.  Doub,  2j 
Cal.  y8;  Stanton  vs.  French,  8j  Cal.  Tg4.) 

§  514.  Unreasonable  Delay  in  Claiming  Ex- 
emption.— Where  several  horses  owned  by  an  exe- 
cution debtor  were  levied  upon,  and  no  notice  of  claim 
of  exemption  was  given  to  the  officer  until  the  day  of 
sale,  which  was  four  months  after  the  levy  :  Held,  that 
the  right  of  election  had  been  lost  by  the  unreasonable 
delay  iii  exercising  it,  and  that  the  officer  was  justified 
in  selling  the  property.      [Borland  vs.  O Neal,  22  Cal. 

505-) 

§  515.    What  Constitutes  a  Reasonable  Time. 

—The- notice  of  claim  should  be  promptly  given  by  the 
debtor,  in  order  that  the  officer  may  levy  on  other 
property,  in  th('  |)lac('  of  that  select(;d,  to  secure  the 
dei)t,  if  there  is  any.  What  will  constitute  a  reason- 
able time  will,  lh(T(;fore,  depend  upon  the  particular 
circiimslances  of  each  case.  There  may  Ik;  cases 
where  a    notice   of    the    selection    !jiv(Mi    at    anv  time 


EXEMPTIONS    FROM    EXECUTION.      §§516-518 

before  the  sale  would  be  sufficient,  where  it  appears 
that  no  injury  has  been  caused  by  the  delay. 

In  a  suit  against  plaintiff  in  execution,  for  the  value 
of  household  furniture  sold  thereunder,  as  being  ex- 
empt, defendant  offered  to  show  that  plaintiff  agreed 
to  place  the  property  in  the  hands  of  a  third  person, 
to  be  sold  for  the  benefit  of  defendant,  the  creditor : 
Held,  that  the  evidence  was  not  admissible,  because 
such  agreement  does  not  necessarily  waive  the  ex- 
emption from  forced  sale.  [Haszvell  vs.  Parsons,  i^ 
Cal.  26'j.) 

Where  a  party  was  absent  in  San  PVancisco,  at  the 
time  his  furniture  was  sold  on  execution,  on  account 
of  sickness  in  his  family,  it  is  a  sufficient  excuse  for 
not  claiming  the  exemption  at  the  time,  the  defendant, 
plaintiff  in  execution,  being  aware  of  such  claim,  it 
having  been  made  on  a  previous  seizure.  {Haszvell  vs. 
Parsons,  75  Cal.  266.) 

§  516.    Sale  after  Claim  Made. — A  sheriff  who 

levies  upon  and  sells  property  exempt  from  execution 
is  liable  for  the  value  of  such  property,  if  claimed  as 
exempt  prior  to  the  sale. 

§  517.    Claimant    Must    Notify    Officer.— The 

officer  is  under  no  obligation  to  hunt  up  the  debtor  in 
advance  of  the  levy,  in  order  to  procure  a  selection  by 
him.  The  debtor  waives  his  right  by  failing  to  claim 
it ;  and  a  claim  under  one  execution,  when  no  sale  was 
made  under  it,  is  not  sufficient  when  the  property  is 
levied  upon  and  sold  under  a  subsequent  execution. 

§  518.     Claim  of  Exemption    How  Made.    The 

requirements  of  the  debtor  upon  claim  of  exempt  prop- 
erty by  him  differ  in  different  states.      In  Arizona  it  is 


§§519.520      EXEMPTIONS    FROM     EXECUTION. 

sufficient  that  he  shall  "designate"  the  property  which 
he  claims  as  exempt  and  "may  point  out  the  portions 
to  be  levied  upon"  {Sec.  igS7  Revised  Statutes,  i88y), 
while  in  Washington  the  debtor  is  required  to  deliver  to 
the  officer  making  the  levy  "a  list  by  separate  items  of 
the  property  he  claims  as  exempt."  {Sec.  ^go  II  Hill's 
Codes,  i8gi.) 

Unless  the  statute  requires  the  claim  to  be  in  writing, 
however,  as  in  the  State  named,  or  as  in  the  case  of 
claim  for  exemption  of  wages,  it  would  seem  that  the 
claim  of  exemption  may  be  made  orally  to  the  officer, 
and  that  he  is  bound  to  take  notice  of  the  claim  thus 
made.  Personal  property  plainly  exempt,  such  as 
household  furniture  and  the  like,  actually  in  use  by  the 
debtor,  should  not  be  levied  upon,  even  if  not  claimed 
as  exempt. 

When  a  debtor  has  more  property  of  a  particular 
kind  than  is  exempt,  and  a  writ  is  levied  upon  a  portion, 
leaving  as  much  as  the  law  exempts,  and  thereafter  the 
debtor  claims  a  portion  of  the  property  levied  upon, 
the  residue  being  insufficient  to  satisfy  the  writ,  the 
debtor,  in  order  to  make  good  his  claim  of  exemption, 
must  offer  to  surrender  to  the  officer  the  other  property 
of  the  same  general  kind,  or  so  much  as  may  be  neces- 
sary to  satisfy  the  writ.  {Keybers  vs.  McComber,  dy 
Cal.  jgs.) 

§  519.  Joint  Claim  Effect.  A  notice  of  claim 
i){  exf-mjjtion,  signed  by  two  persons,  is  sufficient  as  a 
claim  for  ('iihcr  separately.  {Stanton  vs.  French,  8j 
Cal.  /g4.) 

%  520.     Priority  of  Homestead  over  Mortgage. 

— A   (Utclaration   ol    hoincslcad    ])V    the   wife,   after  the 


EXEMPTIONS    FROM    EXECUTION.  §  52 1 

execution  but  before  the  recording  of  a  mortgage  by 
the  husband,  prevents  the  enforcement  of  the  mortgage 
against  the  property.  {First  National  Bank  vs.  Bruce, 
g4  Cal.  yy.) 

§  521.    Grain  on   Homestead  Land. — The  fact 

that  land  is  homesteaded  does  not  of  itself  exempt 
from  execution  all  the  grain  grown  thereon.  It  would 
be  giving  a  strained  interpretation  to  the  language  of 
the  third  subdivision  of  Sec.  690  of  the  Code  of  Civil 
Procedure  (California),  to  say  it  was  intended,  in  addi- 
tion to  all  the  crop  grown  upon  the  homestead,  that  the 
debtor  should  be  secured  seed  orrain  to  the  value  of 
$200.  It  is  obvious  it  is  meant  that  only  grain  to  that 
amount  shall  be  exempt.  [Hogan  vs.  Amick,  62  Cal. 
401.) 

In  the  case  of  Dascey  vs.  Harris,  65  Cal.  357,  an  ac- 
tion in  replevin,  the  following  is  the  opinion  of  the 
court:  "The  wheat  which  is  the  subject  of  this  action 
was  grown  on  the  homestead  of  plaintiffs.  On  the  15th 
of  March,  1879,  the  plaintiff,  John  Dascey,  filed  his 
petition  in  insolvency,  and  such  proceedings  were  had 
that  on  the  29th  of  April,  1879,  he  made  an  assignment 
of  all  his  property,  real  and  personal,  to  the  defendant, 
assignee  in  insolvency.  No  property  was  specifically 
described  in  the  assignment,  but  words  of  oreneral  de- 
scription  only  were  used.  At  the  time  of  filing  the  pe- 
tition, the  premises  constituting  the  homestead  had  been 
sown  with  wheat,  which  was  then  growing,  and  con- 
tinued to  be  o-rowino-  until  after  the  assio-nment.  Some 
time  in  August,  1879,  after  the  wheat  so  raised  on  the 
premises  had  ripened,  and  been  harvested,  threshed 
and  sacked  by  said  John  Dascey,  the  defendant,  as  as- 
signee, under  an  order  of  the  County  Court,  seized  the 


§§522-524      EXEMPTIONS    FROM    EXECUTION. 

grain  on  the  premises,  and  caused  it  to  be  removed 
therefrom.  The  wheat  when  so  taken  was  of  the  value 
of  $1,267.  It  does  not  appear  that  evidence  was  given 
of  any  damage  to  plaintiffs  beside  the  value  of  the 
wheat. 

"At  the  time  of  the  assignment  the  wheat  in  contro- 
versy had  not  such  an  existence  as  that  it  passed  to  the 
assignee.  At  that  time  the  growing  wheat  was  a  part 
of  the  homestead,  at  least  to  the  extent  that  a  convey- 
ance of  the  homestead  would  have  passed  the  growing 
crop. 

"Judgment  reversed  and  caused  remanded,  with  in- 
structions to  render  judgment  on  the  findings  in  favor 
of  plaintiffs  for  the  possession  of  the  property  sued  for; 
or  in  case  a  delivery  cannot  be  had,  for  $1,267,  with 
interest  thereon  from  the  date  of  the  seizure  by  de- 
fendant, and  for  costs." 

§  522.    Joint  Ownership  in  Property  Claimed. 

— Property  owned  jointly  by  husband  and  wife  and 
habitually  used  by  the  husband  alone  in  earning  a  liv- 
ing, cannot  be  by  him  claimed  as  wholly  exempt  as 
against  an  execution  against  both.  [Stanton  vs.  French, 
8 J  Cat.  ig4.) 

§  523.    Partial  Use  of  Building  for  Hotel.— The 

use  of  a  building  partly,  or  even  chiefly,  for  hotel  pur- 
poses, for  which  the  owner  rents  a  portion,  does  not  de- 
prive him  of  his  homestead  exemption,  if  the  building 
is  and  continues  to  be  the  bona-Jidc  residence  of  the 
famih'.      Ufeathman  vs.  Holmes,  g^  Cat.  2gr.) 

§  524.    How  Homestead  May  Be  Levied  Upon. 

—  There  is  no  lien  ol  the  judgment  upon  a  homestead 
until  tlic  levy  of  an  execution;  and  thai  levy  creates  no 


EXEM1>T10NS    FROM    KXECUTION.      §§525-527 

lien,  except  for  the  purpose  of  and  as  a  foundation  for 
instituting  and  carrying  on  proceedings  to  have  an  ap- 
praisement and  sale  under  the  statute.  The  home- 
stead, no  matter  what  may  be  its  actual  value,  cannot 
be  subjected  to  execution  or  forced  sale,  except  in  the 
manner  pointed  out  by  statute.  {California.  Sees. 
1 241,  124^-^g  Civil  Code.) 

Arizona.     Sees.  2oy8-8j  Revised  Stahites,  iSSy. 

Colorado.     Sec.  i6j2  General  Statutes,  i88j. 

Nevada.     Sec.  ^^i  General  Statutes,  i88^. 

Washington.     Sec.  484  II  Hill' s  Codes,  i8gi. 

\  525.    Homestead  Insurance  Exempt.— If  the 

wife  declares  a  homestead  on  common  property,  and 
the  husband  procures  a  policy  of  insurance  on  the  house 
thereon,  and  the  house  is  destroyed  by  fire,  the  sum 
due  from  the  insurance  company  is  not  subject  to  gar- 
nishment by  a  judgment  creditor  of  the  husband. 
(^Houghton  vs.  Lee,  50  Cal.  loi.) 

§  526.    When  Judgment  Is  Not  a  Lien.— Where 

a  homestead  was  declared  after  an  attachment  on  the 
land  and  a  judgment  in  a  Justice's  Court,  but  no  ab- 
stract had  been  filed  or  recorded  in  the  recorder's  office, 
it  was  held  ( Wilson  vs.  Madison,  ^8  Cal.  /)  that  at 
the  time  of  the  declaration  of  homestead,  the  judgment 
did  not  constitute  a  lien  upon  the  premises  within  Sec- 
tion 1 241  of  the  Civil  Code,  and  a  sale  under  the  judg- 
ment conveyed  no  title. 

§  527.    Judgment  No  Lien  upon  Homestead. — 

A  judgment  cannot  become  a  lien  upon  the  homestead. 
It  can  become  a  lien  only  upon  the  real  property  of 
the  judgment  debtor,  which  is  not  exempt  from  execu- 
tion.    [Bowman  vs.  N'oi'-ton,  16  Cal.  214.) 


§§528-531       EXEMPTIONS    FROM    EXECUTION, 

§  528.    Judgment  after  Filing  Homestead.— 

A  judgment  obtained  after  the  filing  of  a  declaration 
of  homestead  cannot  be  enforced  against  a  homestead, 
although  an  attachment  may  have  been  levied  upon 
the  premises  before  the  filing  of  the  declaration. 
{^Sullivan  vs.  Hendrickson,  ^4  Cal.  2^8.) 

§  529.    Levy  on  Homestead  Void.— The  sherifl 

of  Calaveras  county  was  sued  on  his  official  bond  for 
selling  under  execution  against  J.  Kendall  certain  prop- 
erty claimed  by  plaintiff,  as  a  homestead.  The  Su- 
preme Court  decided,  in  10  Cal.  16,  that  no  damage 
had  or  could  result  from  such  a  sale.  If  the  property 
sold  was  a  homestead,  the  sheriff's  deed  conveyed 
nothing.  The  purchaser  at  such  sale  could  acquire  no 
right  to  the  property,  nor  could  the  plaintiff  suffer  any 
injury. 


§  530.    Cloud    on    Title   of   Homestead.— The 

rio-ht  of  homestead  having  once  attached,  and  not  hav- 
ing  been  alienated,  a  deed  from  the  sheriff,  under  an 
execution  against  the  husband,  would  be  a  cloud  upon 
the  tide,  and  prevent  the  free  alienation  of  the  property 
by  the  husband  and  wife.  {Dunn  vs.  Tozei",  10  Cal. 
167.) 

Where  a  homestead  is  sold  by  the  sheriff,  on  an  ex- 
ecution against  the  husband,  or  husband  and  wife,  and 
a  deed  given  to  the  purchaser  therefor,  it  is  a  cloud 
upon  the  tide,  and  a  court  of  equity  will  remove  it. 
[Riley  vs.  Phcl,  2j  Cal.  yi.) 

^531.    When   Sale  May  Be  Enjoined.  -A  sale 

by  a  sheriff,  of  real  estate,  upon  an  execution  against 
the  grantor,  will,  e\-en  if  not  effectual  to  pass  the  title 
to   the   purchaser,  create  a  doubt  as  to  the;  validity  ot 


EXEMPTIONS    FROy     EXECUTION,  §  532 

the  grantee's  title,  and  cast  a  cloud  upon  it,  and  the 
grantee  can  maintain  an  action  to  enjoin  the  sale. 
i^E^igland  vs.  Lewis,  2^  Cat.  jj8.) 

I    532.    Insolvency  "   Exemptions.  —  In  those 

states  in  which  an  insolvency  law  is  in  effect,  statutory 
provision  is  usually  made  therein  for  the  setting  apart, 
for  the  use  and  benefit  of  the  insolvent  debtor,  of  all 
such  property,  both  real  and  personal,  as  is  by  law  ex- 
empt from  execution,  including  a  homestead.  Neither 
the  receiver  nor  the  assignee  has  any  right  to  posses- 
sion of  any  of  the  exempt  property.  (See  also  Sec. 
^21,  ante.) 

California.     Sees.   60,  6,  ij  Insolvent  Act  of  1880. 

JSFevada.     Sec.  j8^o  General  Statutes,  188^. 

Washington.     Sec.  2'/6i  I  Hiir s  Codes,  i8gi. 


CHAPTER    XVI 


REDEMPTION    FROM    EXECUTION    SALE. 


§  533-  The  Power  and  Duties  of  the  Sheriff. 

§  534.  In  What  Cases  Allowed. 

§  535-  Who  May  Redeem. 

§  536.  Though  Defendant  Has  Conveyed,  He  May  Redeem. 

§  537-  Who  Cannot  Redeem. 

§  538.  Redemption  Where  Tenants  in  Common. 

§  539-  Time  of  and  Payment  in  Redemption. 

§  540.  Judgment  Debtor  Need  Produce  No  Certificate. 

§  541.  What  Redemptioner  Must  Produce. 

§  542.  .Successive  Redemptions — Notice  and  Payments. 

§  543.  Transfer  of  Certificate  of  Sale. 

§  544.  When  Deficiency  on  Judgment  Need  Not  Be  Paid. 

§  545-  Judgment  Debtor  Not  Compelled  to  Pay  Prior  Liens. 

§  546.  Partnership  Judgment. 

§  547.  Redemption  of  Real  Estate  of  a  Decedent. 

§  54S.  Redemption  of  Franchise. 

§  549.  Payments  in  Redemption — To  Whom  Made. 

§  549a.  Tender  Equivalent  to  Payment. 

^  550.  What  Money  Sheriff  May  Receive  in  Redemption. 

§  551.  Redemption  in  Treasury  Notes. 

§  552.  Withdrawing  Redemption  Money — Effect. 

§  553-  Payment  under  Protest 

§  554.  Possession  Pending  'Tlniv.  for  Redemption. 

§  555-  Rents  and  Profits  before  Redemption. 

^  556.  Rents  PencUng  Redemption — Decisions. 

^  557.  Rents — Attachment  Will  Not  Lie. 

^  55^-  Kiglits  ()(  Ocditors. 


REDEMPTION   FROM    EXECUTION   SAEE.     §§533-535 

§  559-  Various  Decisions  in  Redemption  Cases. 

§  560.  Statutory  and  Equitable  Right  of  Redemption. 

§  561.  Subsequent  Judgment  Lien. 

§  562.  Costs  of  Appeal  in  Redemption. 

§  563.  When  Possession  and  Title  Pass. 

§  533.    The  Powers  and  Duties  of  the  Sheriff 

in  relation  to  redemption  are  purely  statutory,  and  his 
acts  are  nugatory  unless  the  provisions  of  the  statute 
are  strictly  pursued.  Who  may  redeem,  and  how  re- 
demption may  be  effected,  if  allowed  at  all,  are  matters 
as  to  which  we  must  look  to  the  statute  in  each  par- 
ticular state. 

§  534.    In  What  Cases  Allowed. — When  real 

estate  or  any  interest  therein  is  sold  at  execution  sale, 
redemption  by  the  judgment  debtor  or  by  any  of  the 
interested  persons  known  as  "  redemptioners "  is  al- 
lowed within  a  certain  statutory  period,  usually  either- 
six  months  or  a  year,  unless  the  estate  sold  be  less, 
than  a  leasehold  interest  of  less  than  two  years'  unex- 
pired term,  in  which  case  the  sale  is  absolute. 

Arizona.     Lazvs  of  i88g,  p.  ^j,  Sec.  20. 

California.     Sees,  joo,  J 02  Code  Civil  Procedure. 

Colo7'ado.     Sees.  18^1-^^  General  Statutes,  i88j. 

Idaho.     Sees.  44go,  44g2  Revised  Statutes,  188'/.. 

Montana.     Sees.  J40,  J42  Code  Civil  Procedure.. 

Nevada.     Sees.  2^1,  2jj  Code  Civil  Procedure.. 

Oregon.     Sees.  2gg,  jOT-j  I  Hilts  Codes,  i8g2. 

Utah.     Sees.  ^8j,  ^8^  Code  Civil  Procedtii'-e. 
Washington.     Sees.  511,  513-4  II  Hills  Codes,  i8gi.. 

\  535.  Who  May  Redeem. — Property  sold  sub- 
ject to  redemption,  or  any  part  sold  separately,  may 
be  redeemed  by  the  following  persons,  or  their  suc- 
cessors in  interest : — 


21 


$  S3^  REDEMPTION   FROM  EXECUTION   SALE. 

"i.  The  judgment  debtor,  or  his  successor  in  in- 
terest, in  the  whole  or  any  part  of  the  property. 

"2.  A  creditor  having  a  Hen  by  judgment  or  mort- 
gage on  the  property  sold,  or  on  some  share  or  part 
thereof,  subsequent  to  that  on  which  the  property  was 
sold.  The  persons  mentioned  in  the  second  subdi- 
vision of  this  Section  are  termed  redemptioners." 
{California.     Sec.  yoi  Code  Civil  Procedure.) 

Arizona.     Laws  of  i8Sg,  p.  jfj.  Sec.  20. 

Colorado.     Sees.  2^^y~8  Mills  Aim.  Statutes,  i8gi. 

Idaho.     Sec.  ^^gi  Revised  Statutes,  iSSy. 

Alontana.     Sec.  J41  Code  Civil  Procedure. 

Nevada.     Sec.  2j2  Code  Civil  Procedtn-e. 

Oregon.     Sec.  joo  I  Hilts  Codes,  i8g2. 

Utah.     Sec.  584  Code  Civil  Procedure. 

Washington.     Sec.  57^  //  HilFs  Codes,  i8gi. 

i  536.    Though  Defendant  Has  Conveyed.  He 

May  Redeem, — A  defendant  in  execution  can  re- 
deem from  an  execution  sale,  notwithstanding  he  has 
conveyed  to  another  the  property  sold  under  execution. 
Sec.  701  of  the  (California)  Code  of  Civil  l^rocedure 
provides  in  ternis  that  property  sold  subject  to  redemp- 
tion may  be  redeemed  by  the  judgment  delator  or  his 
successor  in  interest  in  the  whole,  or  an\-  [)art  of  the 
property.  The  successor  in  interest  max  redeem,  but 
the  judgment  debtor  may  also  do  so.  The  statute 
provides  that  the  judgment  debtor,  as  such,  may  re- 
deem- not  that  he  may  redeem  onU  in  the  event 
that  he  has  no  successor  in  interest  in  the  property 
sold  under  execution.  The  court  holds  that  there  is 
no  good  reason  why  the  statute,  which  is  remedial  in 
its  character,  should  receive  ;i  narrow  construction,  in 
order   to   defcut   the   right   of   redemption    wliieh    it    in- 


REDEMPTION  FROM  EXECUTION'  SALE.     §§  537,  538 

tended  to  give.  It  might  be  that  the  judgment  debtor 
has  covenanted  with  his  successor  in  interest  to  effect 
a  redemption  from  the  sale,  and  a  variety  of  other  cases 
might  readily  be  imagined,  in  which  the  judgment 
debtor,  even  though  he  had  sold  the  property,  would 
still  have  an  interest  in  effecting  a  redemption  from  the 
execution  sale."      [Y^oakitin  z's.  Bower,  5/  Cal.  S39-) 


s   c 


^  00/ 


Who  Cannot  Redeem. — Where  a  mort- 
gagor filed  a  homestead  subsequent  to  a  second  mort- 
ofaee,  and  both  morto^ao-es  were  foreclosed,  the  first 
mortgage  and  part  of  the  second  being  paid,  and  judg- 
ment for  the  deficiency  due  the  second  mortgagee  being 
docketed,  it  was  held,  in  Hershey  vs.  Dennis,  53  Cal. 
""],  that  the  lien  of  the  docketed  deficiency  was  super- 
seded by  the  homestead,  and  that  the  second  mortga- 
gee could  not  redeem  from  the  purchaser  at  the  mort- 
gage sale. 

^  538.  Redemption  Where  Tenants  in  Com- 
mon.— Where  land  sold  under  judgment  is  embraced 
in  one  sale,  a  redemptioner  having  a  lien  upon  a  share 
or  part  of  the  land  sold  can  only  redeem  by  paying 
the  whole  of  the  purchase  money  and  redeeming  the 
whole  of  the  land;  and  in  such  case  he  succeeds  to 
the  whole  interest  of  the  purchaser.  Accordingly, 
where  land  was  sold  under  a  judgment  of  foreclosure 
against  tenants  in  comnion,  and  redeemed  by  a  judg- 
ment creditor  of  one  of  the  tenants,  who  in  due  course 
received  his  deed  (as  in  the  case  of  Eldridge  vs.  Wright, 
55  Cal.  531),  it  was  held  that  the  redemptioner  took 
the  interests  of  both  tenants.  Mr.  justice  Thornton 
delivered  the  opinion  of  the  court  in  this  case.  Mr. 
justice  Sharpstein,  concurring  in  the  judgment,  doubted 


S  539  REDEMPTION   FROM   EXECUTION   SALE. 

whether  the  redemptioner  had  a  right  to  redeem  a 
greater  interest  in  the  property  sold  than  that  of  his 
judgment  debtor;  but  was  of  the  opinion,  as  the  pur- 
chaser did  not  object  to  his  redeeming  the  whole 
property,  that  the  effect  of  the  transaction  was  to  vest 
in  him  the  whole  interest  of  the  purchaser.  Mr.  Jus- 
tice Myrick,  dissenting,  was  of  opinion  that  the  redemp- 
tioner was  subrogated  to  the  rights  of  his  judgment 
debtor,  and  thus  became  the  owner  of  the  legal  title 
formerly  held  by  him;  and,  as  to  the  other  tenant,  that 
he  acquired  an  equitable  lien  upon  his  interest  as  se- 
curity for  one-half  of  the  redemption  money. 

A  owes  B  a  debt;  to  secure  it,  A  and  C  jointly 
mortgage  to  B  a  piece  of  land  owned  by  them  in  com- 
mon. Subsequently,  A  mortgages  his  undivided  inter- 
est in  the  land  to  secure  a  debt  to  D.  B  forecloses 
against  A  and  C,  and  buys  in  the  whole  land,  not 
making  D  a  party.  The  time  of  statutory  redemption 
having  expired,  B  gets  a  sheriff's  deed:  Held,  that  D, 
as  subsequent  mortgagee,  may  redeem  A's,  but  not  C's, 
interest  in  the  land,  and  that  the  sale  is  final  as  to  C's 
interest,  D  not  being  a  necessary  party  to  the  foreclos- 
ure,    {Kirkham  vs.  Dupoiit,  14  Cal.  S^3-) 

Redemption  from  execution  sale  by  one  tenant  in 
common,  after  foreclosure  of  mortgage  executed  by 
both,  restores  the  parties  to  their  original  title.  [Calk- 
ins vs.  Sieinbach,  66  Cal.  117.) 

§  539.     Time  of  and  Payment  in  Redemption. 

— Section  702  of  the  California  Code  of  Civil  Proce- 
dure, provides  that  the  judgment  debtor,  or  redemp- 
tioner, may  r(;(le(.'m  the  propc^rty  from  the  purchaser 
.my  timf:  within  six  months  after  the  sale,  on  jjaying 
the   purchas<;r  the  ainotinl   of   his   purchase,    with   two 


REDEMl'TION   FROM   EXECUTION  SALE.     §§  54O,  54I 

per  cent  per  month  therein  in  addition,  up  to  the  time 
of  redemption,  together  with  the  amount  of  any  assess- 
ment or  taxes  which  the  purchaser  may  have  paid 
thereon  after  purchase,  and  interest  on  such  amount, 
and  if  the  purchaser  be  also  a  creditor  having  a  prior 
lien  to  that  of  the  redemptioner,  other  than  the  judg- 
ment under  which  such  purchase  was  made,  the  amount 
of  such  lien,  with  interest." 

In  Idaho,  Nevada,  Montana  and  Utah  the  time  of 
redemption  is  the  same;  in  Washington  it  is  one  year, 
while  in  Oregon  it  is  limited  to  four  months  after  con- 
firmation  of  the  sale.  In  Colorado  the  debtor  has  six 
months  and  redemptioners  nine  months.      Compare: 

Arizona.     Laws  of  i88g,  p.  ^j,  Sees.  21,  22. 

Colorado.     Sees.  2^4^-8  Mills'  Ann.  Stats.,  i8gi. 

Idaho.     See.  44g2  Revised  Statutes,  188'/. 

Montana.     See.  J42  Code  Civil  Proeedure. 

Nevada.     See.  2j^  Code  Civil  Proeedure. 

Oi'-egon.     See.  joj  I  HilFs  Codes,  i8g2. 

Utah.     See.  585  Code  Civil  Proeedure. 

Washington.     See.  ^ij  II  Hilts  Codes,  i8gi. 

%  540.    Judgment  Debtor  Need   Produce  No 

Certificate. — It  is  not  necessary  for  the  judgment 
debtor,  in  effecting  a  redemption,  to  produce  a  certifi- 
cate or  other  credential  required  by  statute  to  be  pro- 
duced in  case  of  redemption  by  a  judgment  or  mort- 
gage creditor.  Those  provisions  do  not  apply  to  the 
judgment  debtor.      [Yoakuvi  vs.  Bower,  5/  Cal.  Sjg.) 

§  541.    What   Redemption    Must   Produce.— 

Besides  giving  the  statutory  notice  and  making  the 
payments  required,  the  redemptioner  must  establish 
his  right  to  redeem,  and  for  this  purpose  must,  under 


§  541  REDEMPTIOX  FROM  EXECUTION  SALE. 

the  California  practice,  "produce  to  the  officer  or  per- 
son from  whom  he  seeks  to  redeem,  and  serve  with  his 
notice  to  the  sheriff: — 

"i.  A  copy  of  the  docket  of  the  judgment  under 
which  he  claims  the  right  to  redeem,  certified  by  the 
clerk  of  the  court,  or  of  the  county  where  the  judgment 
is  docketed,  or  if  he  redeem  on  a  mortgage  or  other 
lien,  a  note  of  the  record  thereof,  certified  by  the  re- 
corder. 

"2.  A  copy  of  any  assignment  necessary  to  establish 
his  claim,  verified  by  the  affidavit  of  himself,  or  of  a 
subscribing  witness  thereto. 

"3.  An  affidavit  by  himself  or  his  agent,  showing- 
the  amount  then  actually  due  on  the  lien."  {California. 
Sec.  yo^  Code  Civil  Procedure. ) 

When  the  redemption  is  attempted  to  be  effected 
through  the  sheriff,  he  has  no  authority,  either  to  re- 
ceive the  redemption  money  from  one  claiming  the 
right  to  redeem  under  a  judgment,  or  to  execute  a 
deed  to  him,  unless  the  redemptioner  complies  strictly 
with  the  provisions  of  the  statute  and  produces  a  copy 
of  the  docket  of  the  judgment  under  which  he  claims 
the  right  to  redeem,  or  such  other  paper  as  the  statute 
expressly  requires  to  be  produced.  He  should  bear  in 
mind  that  a  transcript  of  a  judgment  is  not  e(]uivalent 
to  a  copy  of  the  docket  of  the  judgment.     Compare: 

Arizona.     Laivs  of  i88g,  p.  ^4,  Sec.  24. 

Colorado.     Sec.  2^48  Mills  yhin.  Stats.,  iSgi. 

Idaho.     Sec.  44gS  Revised  Statutes,  iS8y. 

Montana.     Sec.  J4^  Code  Civil  Procedure. 

Nevada.     Sec.  J2^8  General  Statutes,  1885. 

Oregon.     Sec.  jo§  J  Hills  Codes,  i8g2. 

Utah.     Sec.  ^88  Code  Civil  Procedure. 

Washington.     Sec.  516  J I  Hills  Codes,  iSgi . 


REDEMPTION   FROM  EXECUTION  SALE.  §  542 

§  542.    Successive    Redemption— Notice   and 

Payments. — Section  703  of  the  California  Code  of 
Civil  Procedure  provides  that  "if  property  be  so  re- 
deemed by  a  redemptioner,  another  redemptioner  may, 
within  sixty  days  after  the  last  redemption,  again  re- 
deem it  from  the  last  redemptioner,  on  paying  the  sum 
paid  on  such  last  redemption,  with  four  per  cent  thereon 
in  addition,  and  the  amount  of  any  assessment  or  taxes 
which  the  last  redemptioner  may  have  paid  thereon  after 
the  redemption  by  him,  with  interest  on  such  amount, 
and  in  addition  the  amount  of  any  liens  held  by  said 
last  redemptioner  prior  to  his  own,  with  interest;  but 
the  judgment  under  which  the  property  was  sold  need 
not  be  so  paid  as  a  lien.  The  property  may  be  again, 
and  as  often  as  a  redemptioner  is  so  disposed,  redeemed 
from  any  previous  redemptioner,  within  sixty  days  after 
the  last  redemption,  on  paying  the  sum  paid  on  the  last 
previous  redemption,  with  four  per  cent  thereon  in  ad- 
dition, and  the  amount  of  any  assessments  or  taxes 
which  the  last  previous  redemptioner  paid  after  the  re- 
demption by  him,  with  interest  thereon,  and  the  amount 
of  anv  liens,  other  than  the  judgment  under  which  the 

^  ^  Jo 

property  was  sold,  held  by  the  last  redemptioner  previ- 
ous to  his  own,  with  interest.  Written  notice  of  re- 
demption must  be  given  to  the  sheriff,  and  a  duplicate 
filed  with  the  recorder  of  the  county;  and  if  any  taxes 
or  assessments  are  paid  by  the  redemptioner,  or  if  he 
has  or  acquires  any  lien  other  than  that  upon  which  the 
redemption  was  made,  notice  thereof  must  in  like  man- 
ner be  given  to  the  sheriff,  and  filed  with  the  recorder; 
and  if  such  notice  be  not  filed,  the  property  may  be  re- 
deemed without  paying  such  tax,  assessment  or  lieru 
If  no  redemption  be  made  within  six  months  after  the 
sale,  the  purchaser,  or  his  assignee,  is  entitled  to  a  con- 


§  543  REDEMPTION    FROM   EXECUTION'   SALE. 

vevance;  or,  if  so  redeemed,  whenever  sixty  days  have 
elapsed,  and  no  other  redemption  has  been  made,  and 
notice  thereof  given,  and  the  time  for  redemption  has 
expired,  the  last  redemptioner,  or  his  assignee,  is  enti- 
tled to  a  sheriff's  deed;  but  in  all  cases  the  judgment 
debtor  shall  have  the  entire  period  of  six  months  from 
the  date  of  the  sale  to  redeem  the  property.  If  the 
judgment  debtor  redeem,  he  must  make  the  same  pay- 
ments as  are  required  to  effect  a  redemption  by  a  re- 
demptioner. If  the  debtor  redeem,  the  effect  of  the 
sale  is  terminated,  and  he  is  restored  to  his  estate. 
Upon  a  redemption  by  a  debtor,  the  person  to  whom 
the  payment  is  made  must  execute  and  deliver  to  him 
a  certificate  of  redemption,  acknowledged  or  proved 
before  an  officer  authorized  to  take  acknowledgments 
of  conveyances  of  real  property.  Such  certificate  must 
be  filed  and  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  the  property  is  situated,  and  the  re- 
corder must  note  the  record  thereof  in  the  margin  of 
the  record  of   the  certificate  of  sale."     (See  also  Sec. 

54S,  post) 

Arizona.     Lazvs  of  i88g,  p.  4j,  Sec.  22. 

Colorado.     Sees.    2549,    2553^    ^557    '^^^^l^'     ^^^'f^- 
Stats.,  i8gi. 

Idaho.     Sec.  449 j  Revised  Statutes,  iSSy. 

Montana.     Sec.  J4j  Code  Civil  Procedure. 

Nevada.     Sec.  J2^6  General  Statutes,  188^. 

Oregon.     Sec.  J02  I  If  ills  Codes,  i8g2. 

Utah.     Sec.  ^86  Code  Civil  Procedure. 

Washington.     Sec.  514  11  Ifilfs  Codes,  i8gi. 

\  543.    Transfer  of  Certificate  of  Sale.  -The 

simplest  manner  in  which   redemption  may  be   effected 
is  through  the  purciiHser  al   sheriff's  sale,  by  paying  to 


REDEMPTION  FROM  EXECUTION  SALE.  §  544 

such  purchaser  the  redemption  money  and.  receiving 
from  him  the  requisite  transfer,  if  he  will  recognize  the 
right  of  the  appHcant  to  redeem  and  waive  the  usual 
formalities.  But  if  the  redemption  is  sought  to  be  made 
through  the  officer  who  made  the  sale,  all  the  require- 
ments of  the  statute  must  be  complied  with  to  secure 
the  redemption. 

A  quit  claim  deed  from  the  holder  of  the  sheriff's 
certificate  after  the  time  for  redemption  has  expired 
is  equivalent  to  an  assignment  of  the  same,  and  if  the 
sheriff  afterward  execute  a  deed  to  the  purchaser,  the 
same  is  void  as  between  the  parties.  (  Ward  vs.  Do^igh- 
erty,  y^  Cal.  240.) 

I  544.  When  Deficiency  on  Judgment  Need 
Not  Be  Paid  in  Redemption. — During  the  time  for 

redemption,  the  legal  title  is  in  the  mortgagor,  and  may 
be  conveyed  by  him,  and  the  grantee  becomes  entitled 
to  redeem,  without  paying  to  the  mortgagee  the  unsat- 
isfied portion  of  the  judgment  under  which  the  prop- 
erty was  sold  to  him,  and  the  judgment  for  the  defi- 
ciency is  not  a  lien  on  the  land. 

Where,  upon  a  foreclosure  of  a  mortgage,  the  mort- 
gagee purchases  the  land  for  a  sum  less  than  the  amount 
of  the  judgment,  and  dockets  a  judgment  for  the  defi- 
ciency, the  purchaser  from  the  mortgagor  of  the  land, 
pending  the  time  for  redemption,  is  entitled  as  successor 
in  interest  to  redeem  from  the  mortgagee,  without  pay- 
ing the  amount  of  the  deficiency.  The  former  rule, 
that  when  real  estate  which  is  subject  to  a  judgment 
lien  is  sold  on  an  execution  on  the  judgment,  to  the 
judgment  creditor,  for  a  sum  less  than  the  whole  amount 
of  the  judgment,  the  judgment  creditor  continues  to  be 
'*a  creditor  having  a  lien"  for  the  unsatisfied  portion  of 


§  545  REDEMl'TION   FROM  EXECUTION  SALE. 

the  judgment  upon  the  property  sold  under  the  execL  - 
tion,  and  that  neither  the  judgment  debtor  nor  a  redemj.- 
tioner  with  a  subsequent  Hen  could  redeem  without 
paying  said  judgment,  has  been  changed  by  the  Code 
of  Civil  Procedure.  {Simpson  vs.  Castle,  52  Cal.  645.) 
A  judgment  docketed  for  a  deficiency,  after  the  sale 
of  the  mortgaged  premises  under  a  judgment  of  fore- 
closure, is  not  a  lien  upon  the  premises  sold,  if  they 
are  purchased  by  any  person  other  than  the  mortgage 
debtor.     (Black  vs.  Gerichten,  ^8  Cal.  ^6.) 

§  545.    Judgment  Debtor  Not  Compelled  to 

Pay  Prior  Liens. —  In  the  case  of  Sharp  vs.  Miller, 
47  Cal.  82,  the  court  held  that  the  judgment  debtor  is 
not  obliged  to  pay  other  liens  which  the  purchaser 
may  have  on  the  property.  The  code  makes  a  dis- 
tinction between  a  redemption  by  the  judgment  debtor 
and  by  a  creditor  holding  a  lien  on  the  property.  Un- 
der Sec.  702  Code  of  Civil  Procedure  of  California, 
"the  judgment  debtor  or  redemptioner  may  redeem 
the  property  from  the  purchaser  any  time  within  six 
months  after  the  sale,  on  paying  the  purchaser  the 
amount  of  his  purchase,"  etc.  The  same  section  fur- 
ther provides  that  "if  the  purchaser  be  also  a  creditor, 
having  a  prior  lien  to  that  of  the  redemptioner,  other 
than  the  judgment  under  which  such  purchase  was 
made,"  h(\  must  also  pay  the  amount  of  such  lieu. 
Sec,  701  defines  a  redemptioner  to  be  "a  creditor  hav- 
ing a  lien  by  judL^incnt  or  mortgage  on  the  prc^jjerty 
sold,  or  on  some  share  or  part  thereof,  subse(|uent  M 
that  on  which  the  ])roperty  was  sold."  The  judgment 
debtor  is  not  a  "redemptioner"  in  the  sense  in  which 
that  term  is  emplo\(<l  in  Sec.  702  C.  C.  V. 

I)iit  if   a  "  HMleinptioner,"  or,  in  other  words,  a  cred- 


KKDEMl'TION   FROM  EXECUTION   SALE.     ^§546-548 

iter,  holding-  a  subsequent  lien  on  tht;  property,  re- 
deems, he  must  also  pay  to  the  purchaser  any  liens 
he  may  have  prior  to  that  of  the  redemptioner  other 
than  that  for  which  the  property  was  sold.  The  rea- 
son for  the  distinction  made  between  the  judgment 
debtor  and  a  redemptioner  is  that,  if  the  latter  were 
permitted  to  redeem  without  paying  the  prior  lien 
held  by  the  purchaser,  the  title  would  pass  to  the  re- 
demptioner and  the  lien  of  the  purchaser  would  be 
defeated.  But  if  the  judgment  debtor  redeem,  he  is 
restored  to  his  estate,  and  the  lien  held  by  the  pur- 
chaser will  be  available. 

§  546.    Partnership  Judgment. — Under  Sec.  702 

of  the  Code  of  Civil  Procedure  of  California  [See.  ^jg, 
ante),  a  judgment  debtor  whoae  lands  have  been  sold 
under  execution  may  redeem  the  same  from  the  pur- 
chaser without  paying  a  prior  judgment  against  him, 
held  by  a  partnership  of  which  the  purchaser  is  a  mem- 
ber.     ( Campbell  vs.  Oaks,  68  Cal.  222. ) 

§  547.  Redemption  of  Real  Estate  of  a  De- 
cedent.— Sec.  1 505  of  the  Code  of  Civil  Procedure  of 
California  provides  that  "a  judgment  creditor  having 
a  judgment  which  was  rendered  against  the  testator  or 
intestate  in  his  lifetime,  may  redeem  any  real  estate  of 
the  decedent  from  any  sale  under  foreclosure  or  exe- 
cution, in  like  manner  and  with  like  effect  as  if  the 
judgment  debtor  were  still  living." 

§  548.  Redemption  of  Franchise. — A  corpo- 
ration may,  at  any  time  within  one  year  after  execution 
sale,  redeem  its  franchise,  by  paying,  or  tendering  to 
the  purchaser  thereof,  the  sum  paid  therefor  with  ten 


§§549-551    redp:mption  from  exkcution  sale, 

per  cent  interest  thereon,  but  without  any  allowance 
for  the  toll  which  he  may  in  the  meantime  have  re- 
ceived ;  and  upon  such  payment  or  tender,  the  fran- 
chise and  all  the  rights  and  privileges  thereof  revert 
and  belong  to  the  corporation,  as  if  no  such  sale  had 
been  made.     {California.     Sec.  jg2  Civil  Code.) 

i  549.    Payments  in  Redemption — to  Whom 

Made. — The  payments  for  redemption  of  the  property 
sold  may  be  made  to  the  purchaser  or  prior  redemptioner, 
or  for  him  to  the  officer  who  made  the  sale.  When 
the  judgment  under  which  the  sale  has  been  made  is 
payable  in  a  specified  kind  of  money  or  currency,  pay- 
ments must  be  made  in  the  same  kind  of  money  or 
currency. 

§  549a.    Tender  Equivalent  to  Payment.— A 

proper  tender  of  the  full  amount  due  on  redemption  of 
real  property  extinguishes  the  purchaser's  lien,  and  is 
equivalent  to  payment.      {Hershey  vs.  Dennis,  5j>  Cal. 

77-) 

%  550.    What  Money  Sheriff  May  Receive  in 

Redemption. — The  sheriff  is  the:  special  agent  of  the 
purchaser  of  land,  authorized  to  receive  the  redemption 
money  for  him,  and,  as  such,  may  receive  in  redemp- 
tion any  lawful  money,  unless  the  judgment  under 
which  the  sale  was  made  was  rendered  payable  in  a 
l^articular  kind  of  money.  A  payment  to  the  sherift 
lor  the  red(-mj)ti()n  of  land  sold  under  (^\(xution  cannot 
be  made  in  certified  checks.  {People  ex  rel.  Mulfo7'd 
vs.  Mayhew,  26  Cal.  l'^55.) 

I  551.     Redemption  in  Treasury  Notes. — It  is 

held,    in   the   case  of    Ihc    People  ex  rel.    Mulford  vs. 


REDEMI'TION   FROM  EXECUTION  SALE.     §§552-554 

May  hew,  26  Cal.  656,  that  the  obligation  of  a  judg- 
ment creditor  or  redemptioner  to  pay  a  certain  amount 
of  money  in  order  to  exercise  the  statutory  right  of 
redemption  from  a  sale  of  land  made  by  a  sheriff,  is  a 
debt  within  the  meaning  of  the  Act  of  Congress,  mak- 
ing treasury  notes  lawful  money  and  a  legal  tender  in 
payment  of  debts.  Land  sold  at  sheriff's  sale  under  a 
judgment  payable  generally  in  money,  without  specify- 
ing a  particular  kind  of  money,  may  be  redeemed  with 
treasury  notes, 

§  552.  Withdrawing  Redemption  Money  De- 
feats Redemption. —  If  the  judgment  debtor,  whose 
land  has  been  sold  on  the  judgment,  deposits  with  the 
sheriff,  before  the  time  for  redemption  expires,  money 
sufficient  to  redeem  it  from  the  sale,  and  the  sheriff, 
after  the  time  for  redemption  expires,  executes  and 
delivers  to  the  purchaser  a  deed,  the  judgment  debtor, 
if  he  would  claim  the  benefit  of  the  redemption,  must 
not  withdraw  the  money  from  the  sheriff,  for  by  with- 
drawing the  money  he  ratifies  the  act  of  the  sheriff  in 
delivering  the  deed.  ( Wilkiits  vs.  lVilso7i,  5/  Cal. 
212.) 

§  553.  Payment  under  Protest. — When  a  re- 
demptioner, under  the  statute,  pays  to  the  sheriff  an 
excess  of  money,  under  protest  as  to  the  excess,  the 
payment  is  not  compulsory.  [McMillan  vs.  Vischer, 
14  Cal.  2J2.) 

§  554.  Possession  Pending  Time  for  Redemp- 
tion.— A  purchaser  at  sheriff's  sale  does  not  acquire 
title,  but  only  a  lien,  until  after  the  period  limited  for 
redemption.  The  California  statute  allowing  a  re- 
demption of  real  property  sold  at  judicial  sales,  and  al- 


§  555  RKDEMFTIOX  FROM   EXECUTION    SALE. 

lowing  the  purchaser  to  collect  the  rents  of  the  prop- 
erty, plainly  contemplates  that  the  possession  shall  not 
change  to  the  purchaser  until  the  expiration  of  the 
time  prescribed  as  a  limit  to  the  redemption.  Section 
564  Code  Civil  Procedure  provides  that  a  receiver  may 
be  appointed  in  certain  contingencies.  Section  706, 
Code  Civil  Procedure,  gives  the  court  power  to  restrain 
the  commission  of  waste  on  the  property,  and  provides 
that  "it  shall  not  be  deemed  waste  for  the  person  in 
possession  of  the  property  at  the  time  of  the  sale,  or 
entitled  to  possession  afterwards,  during  the  period  al- 
lowed for  redemption,  to  continue  to  use  it  in  the  same 
manner  in  which  it  was  previously  used."  These  pro- 
visions most  clearly  contemplate  an  adverse  possession 
to  the  purchaser  until  the  time  has  expired  for  redemp- 
tion. In  Arizona,  Idaho,  Montana,  Nevada  and  Utah 
the  statute  is  substantially  the  same  as  in  California, 
while  in  Oregon  and  Washington  the  purchaser  is  en- 
titled to  take  possession  from  the  date  of  the  sale,  or 
to  collect  the  rents  in  case  the  property  be  in  possession 
of  a  tenant  with  an  unexpired  term. 

Arizona.     Laws  of  188 g,  p.  ^5,  Sees.  2^,  26. 

Idaho.     Sees.  4^g6  y  Revised  StainJes,  i88j. 

Montana.     Sec.  j^(5  Code  Civil  Procedure. 

Nevada.     Sec.  J260  General  Statutes,  188^. 

Oregon.     Sec.  jO/  I  Hill-  s  Codes,  i8g2. 

Utah.     Sees.  ^8g,  ^go  Code  Civil  Procedure. 

Washington.     Sec.  ^/g  II  I  fill's  Codes,  i8gi. 

\  y:^-:^.    Rents  and  Profits  before  Redemption. 

—  Under  the  practice  in  (  alifornia  and  NCxada,  "the 
purchaser,  Iroin  ihc  lime  of  the  sale  iiiuil  a  redemption, 
and  a  ntdempiioner,  from  the  time  of  his  redemption 
iiiilil   another   redemption,    is  eiuitl'-d    lo   recei\-e,   from 


REDK-MI'TIUN    FROM    EXECUTION   SALE 


DD' 


The  tenant  in  possession,  the  rents  of  the  property  sold, 
or  the  value  of  the  use  and  occupation  thereof  But 
when  any  rents  or  profits  have  been  received  by  the 
judgment  creditor  or  purchaser,  or  his  or  their  assigns, 
irom  the  property  thus  sold  preceding  such  redemption, 
the  amounts  of  such  rents  and  profits  shall  be  a  credit 
upon  the  redemption  money  to  be  paid;  and  if  the  re- 
demptioner  or  judgment  debtor,  before  the  expiration 
of  the  time  allowed  for  such  redemption,  demancis  in 
writing  of  such  purchaser  or  creditor,  or  his  assigns,  a 
written  and  verified  statement  of  the  amount  of  such 
rents  and  profits  thus  received,  the  period  for  redemp- 
tion is  extended  five  days  after  such  sworn  statement 
35  given  by  such  purchaser  or  his  assigns  to  such  re- 
demptioner  or  debtor.  If  such  purchaser  or  his  assigns 
shall,  for  a  period  of  one  month  from  and  after  such 
demand,  fail  or  refuse  to  give  such  statement,  such  re- 
demptioner  or  debtor  may  bring  an  action  in  any  court 
of  competent  jurisdiction,  to  compel  an  accounting  and 
disclosure  of  such  rents  and  profits,  and  until  fifteen 
days  from  and  after  the  final  determination  of  such  ac- 
tion, the  right  of  redemption  is  extended  to  such  re- 
demptioner  or  debtor."  {California.  Sec.  joj  Code 
Civil  Procedure.)     See  also  Sees.  ^^^,  ante;  ^^6-", post. 

Arizona.     Laws  of  i88g,  p.  ^5,  Sec.  2^. 

Nevada.     Sec.  J260  General  Statutes,  188^. 

Oregon.     Sec.  joy  I  Hill's  Codes,  i8g2. 

Washington.     Sec.  ^ig  II  Hills  Codes,  i8gi. 

\  556.  Rents  Pending  Redemption— Deci- 
sions.— Where  the  owner  of  mortgaged  premises 
leases  the  same  for  a  term  of  years,  and  the  rent  is 
paid  in  advance  by  the  tenant:  Held,  that  the  pur- 
chaser under  the  mortgage  sale  can  require  the  tenant 


§  ^^6  REDEMPTION  FROM  EXECUTION   SALE. 

to  pay  the  rent  over  again  to  him.  After  sale,  and 
before  the  term  of  redemption  has  expired,  the  pur- 
chaser is  entitled  to  collect  the  rents.  {^McDevitt  vs- 
Sullivan,  8  Cal.  S93-) 

A  purchaser  of  land  at  sheriff's  sale  can  maintain  an 
action  for  rent  against  the  tenant  in  possession  under 
the  judgment  debtor,  before  the  expiration  of  the  six 
months  allowed  for  redemption,  and  as  often  as  the 
rent  becomes  due  under  the  terms  of  the  lease  when 
he  purchased.  {Reynolds  vs.  Lathrop,  7  Cal.  ^j.) 
The  sale  operates  as  an  assignment  of  the  lease  for 
the  time. 

The  purchaser  at  sheriff's  sale  of  a  "water  ditch"  is 
entitled  to  the  rents  and  profits  thereof  from  the  date 
of  the  sale  until  the  expiration  of  the  time  for  redemp- 
tion, as  well  from  the  judgment  debtor  in  possession 
as  from  his  tenant,  and  where  a  judgment  debtor  re- 
mains in  possession  of  a  "water  ditch"  after  sheriff's 
sale,  and  collects  the  rents  and  profits  during  the  six 
months  following,  he  is  a  trustee  of  the  fund  for  the 
purchaser  at  the  sale,  and  if  the  fund  be  in  danger  of 
loss,  a  bill  in  equity  to  account  will  lie.  {^Harris  vs. 
Reynolds,  ij  Cal.  S^S-) 

A  judgment  debtor  who  redeemed  his  property 
within  twenty-one  days  after  the  sheriff's  sale,  but  who 
had  received  from  his  tenants  in  possession  $445,  rent 
between  the  day  of  sale  and  the  redemption,  held  liable 
to  the  purchaser  at  the  sale  for  the  amount  so  received. 
(//  Cal.  59<5.  Also  cited  as  authority  in  IValls  vs. 
IValkei',  j>7  Cal.  4^2;  and  see  Knight  vs.  Tj-uett,  18 
Cal.  /  /j;  Raun  vs.  Reynolds,  Id.  28g;  Hill  vs.  Tay- 
lor. 22  Cal.  U)i:  Henry  vs.  /tvarts,  jo  Cal.  42^;  Web- 
ster vs.  Cook,  j8  Cal.  42^;  Page  vs.  Rogers,  ji  Cal. 
2g4. ) 


KKDHMl'lION    I'ROM    KXECUTIOX   SAL?:.     §§557,558 

§  557.     Rents— Attachment  Will    Not    Lie.— 

While  the  statute  gives  to  the  purchaser  the  right  to 
receive  the  rents  of  the  property  sold,  pending  the  time 
for  redemption,  he  cannot  enforce  such  right  by  writ  of 
attachment  against  the  tenant's  property.  In  the  case 
of  Walker  vs.  McCusker,  65  Cal.  360,  the  court  say: — 

"This  action  was  brought  to  recover  of  the  defend- 
ant, as  tenant  in  possession  of  real  estate  purchased  by 
plaintiff  on  decree  of  foreclosure  and  sale,  the  sum  of 
$1,200,  value  of  the  use  and  occupation  from  the  day 
of  sale  to  the  making  of  the  deed.  The  plaintiff  sued 
out  a  writ  of  attachment  by  which  property  was  at- 
tached; the  defendant  moved  that  the  attachment  be 
dissolved;  the  court  below  denied  the  motion,  and  the 
appeal  from  the  order  of  denial  is  before  us. 

"Sec.  707  Code  Civil  Procedure  declares  that  the 
purchaser,  from  the  time  of  sale,  is  entitled  to  receive 
from  the  tenant  in  possession  the  rents  of  the  property 
sold  or  the  value  of  the  use  and  occupation. 

"The  liability  of  the  tenant  in  possession  to  the  pur- 
chaser, for  rents  or  use  and  occupation  from  the  day  of 
sale  to  the  expiration  of  the  time  for  redemption,  is  a 
statutory  liability  merely,  and  exists  without  the  assent 
of  the  person  in  possession.  It  is  not  a  liability  founded 
on  a  contract  expressed  or  implied  within  the  meaning 
of  Sec,  537  Code  Civil  Procedure,  authorizing  the  is- 
suance of  an  attachment." 

§  558.      Rights  of  Creditors.— After  the  execution 

of  a  mortgage  upon  real  estate,  a  judgment  was  ren- 
dered against  the  mortgagor,  which  became  a  lien  upon 
the  mortgaged  property;  the  mortgagee  then  foreclosed 
the  mortgage,  making  the  mortgagor  alone  a  party  de- 
fendant, had  the  property  sold  under  the  decree,  became 


22 


§  559  REDEMPTION  FROM   EXECUTION  SALE. 

the  purchaser,  and  obtained  a  sheriff's  deed;  afterwards, 
the  judgment  creditor  procured  an  execution  upon  his 
judgment,  and  had  the  property  advertised  for  sale;  the 
holder  of  the  title  under  the  sheriff's  deed  filed  a  bill 
in  equity  to  enjoin  the  sale:  Held,  that  he  was  not  en- 
titled to  an  injunction,  and  that  the  judgment  creditor 
had  a  right  to  sell  any  interest  in  the  land  held  by  the 
judgment  debtor  at  the  rendition  of  the  judgment  or 
levy  of  the  execution.  Held,  further,  that  the  judg- 
ment creditor's  equitable  right  of  redemption  not  hav- 
ing been  cut  off  by  the  foreclosure,  he  might,  during 
the  two  years  that  his  judgment  was  a  lien  upon  the 
premises,  sell  under  an  execution,  and  purchase  the 
legal  title  of  the  mortgagor,  not  only  that  he  might  as- 
sert his  right  of  redemption  at  any  time  within  the 
period  allowed  by  the  Statute  of  Limitations,  but,  also, 
that  he  might  realize  any  other  benefit  or  advantage 
that  might  accrue  to  him  from  the  sale.  {Alexander 
vs.  Greenwood,  2j  Cal.  ^06.) 

§  559      Various    Decisions    in    Redemption 

Cases. — A  creditor  of  the  mortgagor  obtaining  a  judg- 
ment after  sale  under  the  decree  of  foreclosure,  but  be- 
fore the  execution  of  the  conveyance  thereunder,  ac- 
quires a  lien  on  the  estate  entitling  him  to  redeem. 
{^McMillan  vs.  Richards,  g  Cal.  j6^. ) 

A  subsequent  mortgagee  would  h.ivt;  a  right  to  re- 
deem premises  from  a  sale  under  a  judgment  upon  me- 
chanics' lien  l)y  pa\'iiig  the  money  justly  due,  interest, 
costs,  etc.,  h<'  not  having  been  a  party  to  the  suit  by 
the  lien  holder.      {G amble  vs.   Woll,  15  Cal.  5/0.) 

A  mortgagee  of  the  defendant  in  execution,  who  has 
failed  to  record  his  mortgage  until  aft('r  the  sale,  has 
no  lien  or  ini('rv(*ning  rights  as  against   the  purchaser; 


REDEMPTION  FROM  EXECUTION  SALE.  §  559 

he  can  redeem  under  the  statute;  if  he  fails  to  do  so,  a 
court  of  equity  will  not  interpose.  {Smith  vs.  Randall, 
6  Cal.  5s.) 

The  equitable  right  to  redeem  property  sold  under  a 
decree  of  foreclosure  held  by  subsequent  incumbrancers 
is  merged  into  a  statutory  right,  not  by  any  force  given 
to  the  language  of  the  decree,  but  by  the  fact  that  they 
have  had  their  day  in  court,  and  an  opportunity  of  set- 
ting up  any  equities  they  possessed.  After  the  decree, 
they  stand,  as  to  their  right  of  redemption,  in  the  same 
position  as  ordinary  judgment  debtors.  {^Montgomery 
vs.  Tutt,  II  Cal.  J I  J.) 

The  right  of  the  mortgagor  to  redeem  is  not  affected 
by  the  fact  that  he  may  have  had  no  title  to  the  mort- 
gaged property,  nor  can  the  mortgagee  refuse  the  re- 
demption money,  if  tendered,  because  the  mortgagor 
had  no  title  to  mortgage.  {Lorenzana  vs.  Camarillo, 
45  Cal.  125.) 

A  deed  conveying  land,  and  in  express  terms  reserv- 
ing to  the  grantor  a  lien  to  secure  the  payment  of 
two  promissory  notes  for  a  part  of  the  price,  creates  an 
equitable  mortgage  upon  the  land.  Such  lien  is  more 
than  a  vendor's  lien,  and  is  not  lost  by  the  assignment 
of  the  promissory  notes.  {Dingly  vs.  Bank  of  Ven- 
hcra,  57  Cal.  46'/.)  Such  a  lien  may  be  foreclosed  as 
a  mortgage,  and  there  is  the  same  right  of  redemption 
for  a  limited  period  after  a  foreclosure  sale. 

In  the  case  of  Rumpp  vs.  Gerkins,  59  Cal.  496,  Le- 
onis,  a  prior  mortgagee,  brought  suit  for  foreclosure,  ob- 
tained the  usual  decree,  and  the  writ  was  placed  in  the 
sheriff's  hands  for  execution.  The  mortfjao-ees  then 
executed  a  conveyance  of  the  premises  to  Leonis,  it 
not  being  intended  by  the  latter  that  his  security  should 
merge  in  the  conveyance  or  that  his  lien  should  be  ex- 


§  560  REDEMPTION  FROM  EXECUTION   SALE. 

tinguished.  Following,  Leonis  purchased  the  premises 
at  the  sheriff's  sale.  Plaintiff  claiming  under  a  junior 
mortgage,  not  affected  by  the  prior  suit,  joined  Leonis 
as  defendant  in  an  action  of  foreclosure,  claimino^  the 
conveyance  to  Leonis  operated  a  merger  of  his  mort- 
gage lien  upon  the  premises.  The  court  adjudged  that 
the  lien  of  Leonis  was  not  merged,  that  plaintiff  should 
redeem  the  property  from  Leonis  by  paying  the  latter 
the  amount  bid  at  the  sheriff's  sale. 

§  560.  Statutory  and  Equitable  Right  of  Re- 
demption.— The  right  to  redeem,  under  the  statute, 
irom  a  sale  on  execution,  exists  in  some  instances 
where  there  is  no  equity,  and  in  other  instances  in  con- 
nection with  the  equitable  right.  Parties  to  the  suit 
in  which  the  judgment  is  rendered,  under  which  the 
sale  is  made,  are  restricted  to  the  six  months  given  by 
statute.  Parties  acquiring  interests  pending  suits  to 
enforce  previously  existing  liens,  or  after  judgment 
docketed  or  sale  made,  have  no  equity,  and  are  con- 
fined to  the  rights  given  by  the  statute  ;  but  parties  ob- 
taining interests  subsequent  to  the  plaintiff,  and  before 
suit  brought,  who  are  made  parties  in  such  suit,  pos- 
sess both  the  equitable  and  statutory  right.  They  may 
redeem  under  the  statute,  or  they  may  file  their  bill  in 
equity.  Where  a  mechanic's  lien  attached  on  certain 
premises  January  18,  1856,  and  a  mortgage  was  placed 
on  the  same  premises  January  21,  1856,  and  a  suit 
was  brought  subsequent  to  the  execution  and  record  of 
the  mortgage,  to  enforce  the  mechanic's  lien,  in  which 
suit  the  mortgagees  were  not  made  parties,  and  under 
the  decree  n-ndered  in  such  suit  a  sale  was  made,  and 
after  the  expiration  of  six  months  no  redemption  being 
had,   a    (l(^ed   was    executed    to    the    assignees    of   the 


REDEMPTION  FROM   EXECUTION  SALE,     §§561-563 

sheriffs  certificate,  it  was  held,  in  Whitney  w.  Higgins, 
10  Cal.  547,  that  the  right  of  the  mortgagees  to  redeem 
the  premises,  by  paying  off  the  incumbrance  of  the 
mechanic's  Hen,  was  not  affected  by  the  decree  and 
the  proceedings  thereunder,  and  that  the  purchasers 
of  the  premises,  upon  a  decree  of  foreclosure  of  the 
mortgage,  having  received  his  deed  upon  such  pur- 
chase, were  entitled  to  the  same  right  to  redeem. 

§  561.  Subsequent  Judgment  Lien. — The  pay- 
ment, by  a  judgment  debtor,  of  the  judgment,  after  a 
sheriff's  sale,  extinguishes  the  lien  ;  and  the  fact  that 
he  takes  a  transfer  of  the  certificate  and  the  sheriffs 
deed,  instead  of  a  certificate  of  redemption,  cannot 
divest  the  lien  of  a  subsequent  judgment.  {McCarty 
vs.  Christie,  ij  Cal.  jg.) 

The  purchaser  at  an  execution  sale,  before  convey- 
ance to  him,  has  a  right  to  redeem  the  property  sold 
on  the  enforcement  of  a  prior  lien ;  after  conveyance 
to  him,  he  has  the  same  right  as  successor  in  interest 
to  the  debtor  or  mortgagor.      {^McMillan  vs.  Richards, 

9  ^^^-  4^3-) 
§  562.    Costs  of  Appeal  in  Redemption. — Where 

a  judgment  is  against  two,  one  only  of  whom  appeals, 
and  the  appeal  is  dismissed  with  twenty  per  cent  dam- 
ages, the  damages,  with  the  costs,  do  not  become  part 
of  the  original  judgment,  and  the  redemptioner  is  not 
bound  to  pay  them  when  he  redeems  from  a  sale  under 
the  judgment.     {McMillan  vs.  Vischer,  14  Cal.  2j2.) 

§  563.    When  Possession  and  Title  Pass.— The 

title  to  land  sold  at  execution  sale  does  not  pass  until 
the  execution  and  delivery  of  the   deed.     The    legal 


§  563  REDEMPTION  FROM  EXECUTION  SALE. 

estate  exists  in  the  judgment  debtor  after  expiration  of 
the  time  to  redeem,  until  execution  of  the  conveyance 
to  the  purchaser.  In  the  absence  of  statutory  pro- 
vision to  the  contrary,  the  provisions  allowing  a  re- 
demption of  property  sold  at  judicial  sale  contemplate 
that  the  possession  shall  not  change  to  the  purchaser 
until  the  expiration  of  the  time  limited  for  redemption. 
{Guy  vs.  Middleton,  5  Cal.  jg2.) 

Under  the  Oregon  and  Washington  codes,  the  pur- 
chaser is  entitled  to  possession  from  the  day  of  the  sale. 
{Oregon,  Sec.  joy  I  Hiirs  Codes,  i8g2.  Washington, 
Sec.  ^ig  II  HilFs  Codes,  i8gi.) 


CHAPTER    XVII 


SHERIFF  S    DEEDS. 


§  564 
§  565 
§  566 
§  567 
§  568 
§  569 
§  570 
§  571 

§  573 
§  574 

§  575 


When  Deed  Is  Due. 

When  Deed  Takes  Effect. 

When  Sherift's  Deed  Conveys. 

Recitals  in  Sherift's  Deed. 

Parol  Evidence  Not  Admissible. 

Who  Estopped  by  Recitals  in  Sheriff's  Deed. 

Against  Whom  Officer's  Deed  Is  Evidence. 

How  Meaning  of  Deed  Ascertained. 

Against  Whom  Officer's  Deed  Not  Evidence. 

Premature  Sherift's  Deed  Void. 

When  Mandamus  to  Sherift'Will  Not  Lie. 

Deed  by  Deputy. 


§  564.  When  Deed  Is  Due.— The  purchaser,  or 
his  assignee,  is  entitled  to  a  sheriff's  deed  after  the 
expiration  of  the  period  fixed  by  the  statute  for  redemp- 
tion. This  period  varies  under  the  statutes  in  different 
states,  and  in  some  there  is  no  redemption,  the  sale 
being  absolute  in  the  first  instance.  (See  Sees.  5J9, 
4^6,  ante.) 

The  term  "months"  used  in  the  statute,  fixing  the 
period  of  redemption  from  judicial  sales,  means  calen- 
dar and  not  lunar  months;  and  a  sheriff's  deed  exe- 
cuted before  the  expiration  of  the  statutory  period  of 
redemption,  is  absolutely  void,  and  not  merely  voidable. 
{Gross  vs.  Fowler,  21  Cal.  jgj.) 


^  565  sheriff's  deeds. 

§  565.    When    Deed   Takes    Effect.  -When   a 

judgment  is  rendered  in  an  attachment  suit,  and  be- 
comes a  lien  on  real  property,  the  lien  of  the  attach- 
ment is  merged  in  the  judgment,  and  the  deed  which 
follows  takes  effect  from  the  date  of  the  attachment. 
The  judgment  does  not  operate  so  as  to  release  or  ob- 
literate the  attachment  lien.  The  property  attached  is 
still  in  contemplation  of  law  in  the  hands  of  the  officer, 
subject  to  the  judgment.  The  property  is  sold  under 
final  process  issued  on  the  judgment,  but  the  deed  made 
to  the  purchaser  at  the  sale,  as  the  last  of  the  series  of 
acts,  takes  effect  from  the  date  of  the  levy  of  the  attach- 
ment, as  the  first  of  the  series  of  acts,  and  perfects  the 
title  of  the  property  from  the  day  when  it  was  taken  by 
the  officer  for  the  satisfaction  of  the  judgment.  In  the 
case  of  Porter  vs.  Pico,  55  Cal.  174,  Mr.  Justice  McKee, 
who  delivered  the  opinion  of  the  court,  said: — 

"  Perhaps  it  would  be  more  in  accordance  with  the 
fitness  of  things  to  deal  with  the  fact  of  the  levy  of  the 
attachment  as  of  an  incipient  execution,  by  which  the 
officer  has  taken  into  his  possession  the  subject  of  the 
levy  for  the  satisfaction  of  any  judgment  which  might 
be  recovered,  and  to  order  him,  after  judgment,  to  sell 
the  specific  property  for  that  purpose.  Under  the  other 
practice,  the  levy  of  the  attachment,  upon  the  principle 
transit  in  i^eiu  jiidicatam,  becomes  merged  in  the  judg- 
ment, and  th(.-  judgment  perpetuates  the  lien  of  the  levy, 
and  the  sheriff's  deed  perfects  the  title  which  passes  by 
the  sale  under  the  judgment  and  relates  to  the  date  of 
the-  levy.  I'pon  these  principles  it  is  not  necessary 
for  the  coiirl,  in  order  to  enforce  priority  of  lien,  to 
make  an  order  for  the  sale  of  the  |)roperty  attached,  or 
\.()  issu<-  a  venditioni  exponas.  The  execution  upon  the 
judgment  is  a  sufficient  authority  to  the  sh(;riff  to  sell 


sheriff's  deeds.  §  566 

the  real  property  which  he  has  in  his  possession,  and 
the  deed  which  he  makes  relates  back  to  the  date  of 
the  lien  perpetuated  by  the  judgment."  (See  also  next 
section.) 

A  sheriff's  deed  takes  effect  from  the  time  of  its  actual 
delivery,  and  the  execution  of  the  deed  by  the  sherift, 
and  information  given  by  him  to  the  grantee  that  the 
deed  is  ready  for  him,  do  not  amount  to  a  delivery. 
{Jefierson  vs.  Wendt,  5/  Cal.  573.)  The  statute  of 
limitations  does  not  commence  running  against  a  pur- 
chaser of  land  at  a  sheriff's  sale  until  the  sheriff's  deed 
has  been  delivered  to  the  purchaser,  or  someone  for 
him,  in  such  a  way  as  to  be  beyond  the  legal  control  of 
the  grantor. 

§  566.    What  Sheriff's   Deed   Conveys.— The 

sheriff's  deed  on  execution  sale  passes  such  title  and 
interest  as  the  judgment  debtor  had  in  the  land  at  the 
time  of  the  levy,  and  such  as  he  acquired  between  the 
time  of  the  levy  and  the  sale.  [Kenyon  vs.  Qitinn,  41 
Cal.  325;  Frink  vs.  Roe,  yo  Cal.  2g6.)  W^hen  an 
attachment  Y  is  been  levied  in  the  suit  under  which  the 
sale  is  made,  however,  the  deed  of  the  sheriff  also 
relates  back  to  the  attachment,  and  conveys  such  title 
as  the  judgment  debtor  had  at  that  time.  {^Porter  vs. 
Pico,  55  Cal.  16^.  And  in  case  of  any  other  statutory 
lien,  for  satisfaction  of  which  the  sale  is  made,  the  deed 
relates  back  to  the  vesting  of  such  lien.  [Littlejield 
vs.  Nichols,  42  Cal.  jy2.)  When  there  are  no  judg- 
ment or  attachment  or  other  statutory  liens,  the  deed 
relates  back  only  to  the  time  of  the  levy  of  the  execu- 
tion.    [Blood  vs.  Light,  j8  Cal.  64g.) 

The  sheriff's  deed  of  an  equitable  title,  standing  in 
ihe  judgment  debtor,   does  not,   by  operation  of  law, 


§§  567,  5^8  sheriff's  deeds. 

pass  the  legal  title  which  may  thereafter  be  acquired  by 
him;  but  the  debtor  holds  the  legral  title  in  trust  for  the 
purchaser  under  the  sheriff's  sale.  ^Kenyan  vs.  Quinn, 
ante.)     See  also  Sec.  ^6^,  ante. 

%  567.    Recitals  in  Sheriff's  Deed. — The  officer 

who  makes  a  sale  of  land  by  virtue  of  an  execution, 
and  executes  to  the  purchaser  a  deed  therefor,  must,  in 
his  deed,  make  recitals  of  the  recovery  of  the  judgment, 
the  names  of  the  judgment  creditor  or  creditors,  and 
of  the  judgment  debtor  or  debtors,  and  of  the  issuing 
of  an  execution  on  the  judgment,  and  of  the  levy  and 
sale  thereunder.  The  recital  of  such  facts  is  essen- 
tial to  show  the  officer's  authority  and  the  transmission 
of  the  debtor's  title  in  the  property  to  the  purchaser. 
{Donahue  vs.  McNiUty,  24  Cal.  411.) 

"  It  may  be  regarded  as  settled  in  California  that  the 
misrecital  of  the  execution  in  an  officer's  deed  will 
not  affect  the  validity  of  the  deed,  if  the  officer  had 
authority  to  sell."      (Wilson  vs.  Madison,  ^^   Cal.  5.) 

§  568.    Parol  Evidence  Not  Admissible.— Parol 

testimony  of  the  officer  who  makes  a  sale  of  property 
under  an  execution,  and  executes  a  deed  to  the  pur- 
chaser therefor,  is  not  admissible  for  the  purpose  of  add- 
ing to,  contradicting,  or  altering  the  terms  of  the  deed. 
Parol  evidence  is  inadmissible  to  show  that  a  consta- 
ble's sale  was  made  by  virtue  of  any  other  judgment 
or  execution  than  that  recited  in  the  deed;  and  it  is 
also  inadmissibU;  to  show  that  the  constable  sold  the 
interest  of  a  person  in  the  land  described  in  the  d^fnX, 
whose  interest  the  deed  itself  does  not  recite  upon  its 
face  to  have  been  sold.  {Dofla/me  vs.  McNulty,  24 
Cal.  412.) 


sheriff's  deeds.  §§  569-572 

§  569.    Who  Estopped  by  Recitals  in  Sheriff's 

Deed. — The  officer  executing  a  deed  for  property  sold 
under  execution,  and  those  who  claim  under  the  deed, 
are  estopped  from  denying  the  truth  of  the  matters 
recited  therein,  but  the  same  are  not  evidence  as 
against  strangers,  or  those  claiming  adversely  to  the 
deed.     {Donahue  vs.  McNulty,  24  Cal.  411.) 

§  570.  Against  Whom  Officer's  Deed  Is  Evi- 
dence.— A  deed  of  a  constable,  made  of  land  sold  un- 
der execution,  is  not  evidence  of  the  purchaser's  title 
as  against  any  person  except  those  whom  the  deed 
shows  upon  its  face  to  have  been  judgment  debtors, 
and  named  as  such  in  the  execution  issued  on  the  judg- 
ment, and  whose  interest  in  the  property  was  sold  by 
the  officer.     {Donahue  vs.  McJVulty,  24  Cal.  411.) 

§  571.    How  Meaning  of  Deed  Ascertained.— 

Where  the  language  of  a  deed  executed  by  an  officer 
for  property  sold  under  execution  is  plain  and  unam- 
biguous, the  court  should  limit  its  inquiry  to  what  the 
words  of  the  deed  express,  without  regard  to  any  in- 
tention independent  of  the  words.  {Donahue  vs. 
McNulty,  24  Cal.  411.) 

§  572.  Against  Whom  Officer's  Deed  Not  Evi- 
dence.— Where  a  judgment  was  rendered  against  sev- 
eral persons,  and  the  execution  issued  upon  it  against 
all  the  judgment  debtors,  and  the  constable  levied  upon 
and  sold  the  land  of  one  of  the  judgment  debtors,  but, 
in  making  a  deed  to  the  purchaser,  did  not  insert  the 
name  of  the  one  whose  land  had  been  sold  as  a  judg- 
ment debtor,  or  recite  that  his  land  had  been  sold: 
Held,  that  the  deed  was  not  evidence  of  title  in  the 


§§  573-575  sheriff's  deeds. 

purchaser  as  against  the  owner  of  the  land.  {^Donahue 
vs.  McNulty,  24  Cal.  411.)  See  also  Sees.  ^6g,  570, 
ante. 

§  573.    Premature  Sheriff's  Deed  Void.— If  a 

sheriff's  deed  be  given  before  the  time  for  redemption 
has  expired,  it  is  void.  {Gross  vs.  Foivler,  21  Cal.  jgj-) 
See  also  Sec.  ^64,  ante. 

\  574.    When  Mandamus  to  Sheriff  Will  Not 

Lie. — A  mandamus  will  not  lie  to  compel  a  sheriff  to 
make  a  deed  of  land  to  a  purchaser  at  execution  sale, 
who  refuses  to  pay  the  purchase  money,  on  the  ground 
that  he  is  entitled  to  it  as  oldest  judgment  and  execu- 
tion creditor,  especially  when  there  is  an  unsettled  con- 
test as  to  the  priority  of  his  lien.  (  Williams  vs.  Smith, 
6  Cal.  g8.) 

§  575.  Deed  by  Deputy. — A  sheriff's  deputy  may 
execute  a  deed  for  property  sold  under  execution,  but 
he  must  execute  it  in  the  name  of  the  sheriff.  (Lewis 
vs.  Thompson^  j  Cal.  267.) 


CHAPTER   XVIII. 


FORECLOSURE. 


§   576 

§  577 
§  578 
§  579 
§  580 
§  581 
§  582 
§  583 
§  584 
§  585 
§  586 
§  587 
§  588 
§  589 


Sales  under  Foreclosure. 

Levy  Not  Necessary. 

Sherifif's  Authority  to  Make  Sale. 

Prompt  Return  after  Sale. 

Time  for  Return  Unlimited. 

Second  Order  of  Sale. 

Order  of  Sale — Designation  by  Judgment  Debtor. 

Sale  of  Both  Real  and  Personal  Property. 

Appeal — Stay  of  Proceedings. 

Title  Conveyed  by  Foreclosure  Sale. 

Removal  of  Improvements. 

Mortgage  of  Partner's  Interest. 

Redemption. 

Rights  of  Mortgagor. 

Sale  by  Commissioner. 


§  576.    Sales  under  Foreclosure. — The  course 

of  procedure  in  making  sales  of  property  under  fore- 
closure is  the  same  as  that  provided  for  sales  under 
writs  of  execution  issued  against  real  property  of  the 
judgment  debtor,  the  notice  of  sale  being  published 
and  posted  and  the  sale  conducted  in  all  respects  as 
provided  in  the  statute,  except  so  far  as  may  be  pro- 
vided in  the  decree  and  order  of  sale.  [Heyman  vs. 
Babcock,  JO  Cal.  j6j.) 


§§  577.   57^  FORECLOSURE. 

§  577.  Levy  Not  Necessary. — It  is  not  neces- 
sary that  a  sheriff  should  go  upon  the  land  to  make  a 
formal  levy  under  a  decree  of  foreclosure  and  order  of 
sale  of  real  property.  The  object  of  a  levy  is  to  create 
a  lien  upon  the  land — to  indicate,  by  some  act  of  the 
officer,  the  particular  property  which  he  intends  to  sell. 
When,  however,  the  judgment  itself  designates  the 
property  which  is  to  be  sold,  as  in  case  of  foreclosure, 
there  is  no  occasion  for  a  levy.  {Southern  Cal.  L.  Co. 
vs.  Hotel  Co.,  g4  Cal.  ^z/.) 

§  578.    Sheriff's  Authority  to  Make    Sale.— 

Under  the  chancery  system,  a  certified  copy  of  the  de- 
cree of  foreclosure  was  furnished  to  the  officer  as  his 
authority  for  making  the  sale,  and  he  acted  under  the 
direct  mandate  of  the  court;  and  such  is  now  the  proper 
practice  where  no  statutory  provision  is  made  on  the 
subject.  In  California,  "when  the  judgment  requires 
the  sale  of  property,  the  same  may  be  enforced  by  a 
writ  reciting  such  judgment,  or  the  material  parts 
thereof,  and  directing  the  proper  officer  to  execute 
the  judgment  by  making  the  sale  and  applying  the 
proceeds  in  conformity  therewith."  {Sec.  684  Code 
Civil  Procedu7'e.)  "This  'writ'  is  neither  styled  an 
execution  nor  is  it  such  in  its  nature,"  no  levy  being  nec- 
essary in  order  to  designate  the  property  to  be  sold; 
neither  is  it  subject  to  the  statutory  provisions  as  to 
the  time  of  return  of  executions.  {Southern  Cal.  L. 
Co.  vs.  Hotel  Co.,  g4  Cal.  21^,  i8g2.) 

The  ]>revailing  practice  in  California,  under  the  sec- 
tion (|uoted,  has  been  for  the  clerk  to  issue  a  writ, 
coniiiionK'  known  as  th(*  "order  of  sale,"  similar  in 
form  to  an  execution,  referring  briefly  to  the  decree, 
and  accomi^anicd  by  a  certified  copy  thereof  and  com- 


FORECLOSURE.  §  57^ 

manding  the  sheriff  to  sell  the  property  described  in 
the  decree,  according  to  its  terms  and  requirements. 
Neither  the  description  of  the  property  nor  the  amount 
of  the  judgment  appears  in  such  writ. 

Since  the  rendition  of  the  decision  last  cited  (94 
Cal.  217),  some  doubt  has  prev^ailed  as  to  the  regularity 
of  the  practice  as  above  stated,  and  some  attorneys 
have  insisted  that  the  writ,  or  "order  of  sale,"  issued 
by  the  clerk,  shall  itself  contain  all  the  material  parts 
of  the  decree,  no  copy  of  the  latter  being  sent  with  it 
to  the  sheriff.  In  that  case,  however,  the  court  say 
that,  in  the  code  provision  quoted,  there  is  preserved 
the  distinction  between  the  mode  of  executing  a  com- 
mon law  judgment,  to  wit,  by  writ  of  execution,  and  a 
decree  in  equity ;  that  the  officer,  in  making  the  sale, 
is  only  executing  the  directions  of  the  court  just  as, 
under  the  chancery  system,  the  officer  acted  under  the 
direct  mandate  of  the  court,  his  only  authority  being 
a  certified  copy  of  the  decree.  It  is  also  worthy  of 
notice  that  the  only  point  decided  by  the  court  in  that 
case  was  that  the  sale  should  not  be  set  aside  on  the 
sole  ground  that  it  was  made  after  the  return  day 
named  in  the  writ. 

Further,  in  deciding-  the  case  of  Treofear  vs.  Etiwanda 
Water  Co.,  76  Cal.  537  (1888),  the  same  court  had 
said;  "The  practice  of  the  courts  in  this  State  in  di- 
recting the  sale  of  encumbered  property  under  fore- 
closure proceedings  has  not  been  uniform. 
Under  Sec.  684  Code  Civil  Procedure,  a  writ  reciting 
the  judgment,  or  the  material  part  thereof,  and  direct- 
ing the  officer  to  execute  the  judgment,  by  making 
the  sale,  etc.,  is  the  proper  course.  By  analogy  to  the 
former  equity  practice,  this  writ  is  usually  termed  an 
order  of  sale.  Plaintiff  so  calls  it  in  his  complaint,  and, 
as  we  think,  properly." 


§579  FORECLOSURE, 

The  case  of  Heyman  vs.  Babcock,  30  Cal.  367  (1866), 
involved  a  foreclosure  sale  in  1856,  when  the  statute 
provided  that  where  the  judgment  requires  the  per- 
formance of  any  act  other  than  the  payment  of  money, 
a  certified  copy  of  the  judgment  may  be  served  upon 
the  officer,  and  his  obedience  thereto  enforced.  (Sec. 
2/ J  Practice  Act.)  In  that  case  the  court  say  that  the 
general  rule  that  process  is  the  proper  authority  of  the 
sheriff  applies  to  foreclosure  cases;  that  when  no  ex- 
press provision  is  made  either  by  law  or  in  the  decree 
prescribing  the  mode  of  making  sale,  "the  sheriff  acts 
under  and  by  virtue  of  an  order  of  sale  issued  upon  the 
decree;"  that  this  practice  "has  been  too  long  adopted 
and  too  uniformly  acquiesced  in  to  be  now  changed  by 
the  court  on  the  ground  that  it  was  not  fully  authorized 
by  that  act." 

It  would  seem,  therefore,  that,  considering  these 
cases,  either  with  reference  only  to  the  points  actually 
decided,  or  giving  full  effect  to  the  obiter  dicta,  they 
are  not  only  not  in  conflict  with  the  prevailing  practice 
as  hereinbefore  outlined,  but  would  appear  to  sustain 
it.  I  n  whichever  form  the  writ  or  decree  comes  to  the 
hands  of  the  officer,  however,  he  should  execute  its 
mandates  if  it  comes  under  seal  of  the  court  and  prop- 
erly attested. 

^  579.    Prompt  Return  after  Sale.    The  sherift 

should  make  his  return  as  soon  as  the  sale,  delivery 
and  filing  of  the  certificate  of  sale  are  accomplished,  to 
enaljle  the  plaintiff  to  have  docketed  any  deficiency  that 
may  exist  against  the  judgment  debtor.  The  plaintiff, 
in  most  cases,  is  entitled  to  an  execution  for  the  defi- 
ciency, and  if  the  judgment  debtor  has  other  property 
that  may  be  lc\icd  upon,  the  plaintiff  may  (expect  such 


KORKCLOSURK.  §§  580-582 

promptness  on  the  part  of  the  officer  as  will  enable  him 
to  secure  the  remainder  of  his  judgment,  if  it  can  be 
made.  Any  undue  delay  in  making  the  return  may 
entail  loss  upon  the  plaintiff,  for  which  the  sheriff  would 
be  responsible. 

§  580.    Time  for  Return  Unlimited. — When  the 

statute  provides  that  a  judgment  for  the  sale  of  specific 
property,  as  in  cases  of  foreclosure,  may  be  enforced 
by  a  "writ  reciting  such  judgment"  {Sec.  68^  Code 
Civil  Procedure,  Cal.),  such  "writ"  is  not  an  "execu- 
tion "  which  must  be  enforced  and  returned  within  the 
statutory  time.  {Southern  Cal.  Lzimber  Co.  vs.  Ocean 
Beach  Hotel  Co.,  g4  Cal.  21'/.) 

§  581.    Second  Order  of  Sale.— A  second  order 

of  sale  may  issue,  if  the  first  order  of  sale  be  not  exe- 
cuted. Such  second  order  might  in  some  cases  be 
ground  of  objection  on  the  score  of  costs,  but  it  is  not 
objectionable  as  affecting  the  validity  of  the  sale. 
{Shores  vs.  Scott  River  Water  Co.,  ly  Cal.  626.) 

§  582.  Order  of  Sale  Designation  of  Prop- 
erty by  Debtor. — A  statute  providing  that  the  judg- 
ment debtor  may  direct  the  order  in  which  property, 
personal  or  real,  shall  be  sold,  and  that  the  sheriff  shall 
follow  his  directions,  is  applicable  to  a  foreclosure  sale, 
when  the  decree  is  silent  as  to  such  order.  A  sale  not 
so  conducted  is  not  void,  but  merely  voidable,  and  on 
timely  motion  the  court  should  ordinarily  set  it  aside. 
{Marston  vs.   White,  gi  Cal.  jy.) 

The  well-established  rules  in  equity  proceedings  re- 
quire in  foreclosure  cases,  not  only  that  the  property 
should  be  sold  in  parcels,  but  that  the  property  included 


23 


'§§  5^3-585  FORECLOSURE. 

in  the  first  mortoao-e  should  he  exhausted  before  re- 
course  is  had  to  the  second.  [Rauu  vs.  Reynolds,  11 
Cal.  14.)     See  also  Sees.  453-5,  ante. 

In  the  absence  of  any  statutory  provision  as  to  the 
manner  of  making  sale  under  foreclosure,  the  court  has 
jurisdiction  to  provide  in  the  decree  that  the  property  be 
sold  either  in  one  or  in  several  parcels,  and  the  officer 
making-  the  sale  is  bound  to  follow  such  directions. 
{^Hopkins  vs.   Wiard,  7.?  Cal.  25 g.) 

§  S^:^.  Sale  of  Both  Real  and  Personal  Prop- 
erty.— When  a  mortgage  covers  both  real  and  personal 
property,  both  may  be  sold  under  decree  of  foreclosure 
and  transferred  by  the  sheriff's  deed,  if  no  redemption 
be  made.      {Tregeaj'  vs.  Etiwanda  Water  Co.,  y6  Cal. 

537-) 
i  584.    Appeal— Stay  of  Proceedings.     Under 

the  California  practice  {Sec.  g45  Code  Civil  Procedure) 
when  a  decree  of  foreclosure  provides  for  a  deficiency 
judgment,  execution  cannot  be  stayed  unless  the  under- 
taking on  appeal  provide  for  the  payment  of  the  defi- 
ciency.    {Spence  vs.  Kozvalsky,  g5  Cal.  152.) 

\  585.    Title  Conveyed  by  Foreclosure  Sale. — 

When  a  mortgage  conveys  the  estate  in  fee,  the  title  of 
a  j)urchaser  at  a  foreclosure  sale  relates  back  to  the 
date  of  the  mortgage,  and  he  acquires  all  the  estate 
vested  ill  the  mortgagor  at  that  time  ;uul  also  that  which 
h<-  ma\'  have  subs((|ii('ntl\'  ac(iuircd.  {Barnard  vs. 
Wilson,  J 4  Cal.  512.)     See  also  Sec.  566,  ante. 

The  (\vrx\  of  the  sheriff  passes  fixtures  subsecjuently 
annex<'<l  by  the  niorlgagor.  {Sands  vs.  Pfeiffer,  10 
Cal.  25(j.) 


FORECLOSURE.  §§  586,   587 

§  586.  Removal  of  Improvements.— The  sev- 
erance and  removal  of  a  house  from  the  freehold 
changes  the  character  of  the  house  from  real  to  per- 
sonal property,  whether  the  severance  is  by  the  act  of 
God  or  of  man. 

A  house  on  a  mortgaged  lot  in  Sacramento  was  car- 
ried by  the  flood  in  1862  into  the  street,  a  short  dis- 
tance from  the  lot.  The  owner  made  a  contract  with 
one  Lowell  to  sell  him  the  house,  and  Lowell  was  about 
to  remove  it,  when  the  mortgagee  brought  an  action  to 
foreclose  the  mortgage  and  to  restrain  the  removal.  At 
the  trial,  the  court  rendered  a  judgment  against  the 
owner  of  the  lot  for  the  amount  due  on  the  note;  and 
a  decree  for  the  foreclosure  of  the  mortgage  and  for 
the  sale  of  the  mortgaged  property,  excepting  the 
house,  and  as  to  that  it  was  ordered  that  the  decree 
should  not  affect  nor  authorize  its  sale.  The  judgment 
was  affirmed  on  appeal,  and  it  was  held  that  the  sever- 
ance and  removal  of  the  house  withdrew  the  house  from 
the  operation  of  the  mortgage  lien,  and  that  after  the 
removal  the  mortgagor  or  his  assignee  had  a  right  to 
sell  the  house,  and  the  purchaser  to  convert  it  to  his 
own  use.     (Buckoui  vs.  Swift,  2j  Cal.  434.) 

\  5S7.    Mortgage    of    Partner's    Interest.— If 

two  or  more  persons  are  partners  in  the  ownership  and 
management  of  real  estate,  and  owe  partnership  debts, 
and  one  of  the  partners  mortgages  his  interest  in  the 
property  to  secure  his  individual  debt,  the  mortgagee 
acquires  only  the  mortgagor's  interest  in  the  surplus 
after  the  payment  of  the  partnership  debts;  and  if  these 
equal  or  exceed  the  value  of  the  property,  and  it  is 
afterwards  sold  by  the  partners  to  pay  the  partnership 
debts,  the  mortgagee,  as  against  the  purchaser,  holds 


§§  588-590  FORECLOSURE. 

no  interest  in  the  property,  liable  in  equity  to  be  sold, 
and  the  mortgage  cannot  be  foreclosed.  {Jones  vs. 
Parsons,  2^  Cal.  100.) 

§  588.  Redemption. — After  foreclosure  sale,  re- 
demption may  be  made  in  the  same  manner  and  by 
the  same  persons  as  in  case  of  sales  under  writ  of  exe- 
cution, which  subject  is  treated  in  this  work  in  the 
chapter  on  "  Redemptions,"  Sec.  jjj,  ante.  {McMillan 
vs.  Richards,  g  Cal.  j6^;  Calkins  vs.  Steinbach,  66  Cal. 
117.) 

§  589.  Rights  of  Mortgagor. — A  mortgagor,  after 
a  sale  of  the  mortgaged  premises  under  a  decree  in  a 
suit  to  foreclose  the  mortgage,  has  the  right  to  the  use 
and  possession  of  the  mortgaged  premises  until  the 
execution  of  the  sheriff's  deed,  but  he  possesses  n<y 
right  to  despoil  the  property  of  its  fixtures.  (See  also> 
Sees.  554-5,  ante.) 

%  590.  Sale  by  Commissioner. —  Under  the  prac- 
tice in  California  since  i«S93,  the  court  may,  by  its 
judgment,  or  at  any  time  after  judgment,  appoint  a 
commissioner  to  sell  the  incumbered  property.  If  such 
commissioner  be  appointed,  he  shall  sell  it  in  the  man- 
n<^r  provided  by  law  for  the  sale  of  like  property  b\ 
the  sheriff  upon  execution,  and  the  provisions  of  Chap- 
t'T  I,  Title  9,  Part  11,  of  \\\v.  Code  of  Civil  Pro- 
cedunt  (reflating  to  (execution  sales),  are  made  appli- 
cable to  sal(;s  made  by  such  commissioners,  and  the 
powers  therein  given  and  the  duties  therein  imposed 
on  sheriffs  an.'  e.\t<-n(led  to  such  commissioners.  {Sec. 
726  C  C.  P.)  "The  commissioner,  before  entering 
u|K)n  his  duli<"s,  must   be  sworn   to  perloi'ni  th<'m  taith- 


FORECLOSURE.  §  59O 

fully,  and  the  court  making  the  appointment  shall  re- 
quire of  him  an  undertaking,  with  sufficient  sureties, 
to  be  approved  by  the  court,  in  an  amount  to  be  fixed 
by  the  court,  to  the  effect  that  he  will  faithfully  perform 
the  duties  of  commissioner,  according  to  law.  Within 
thirty  days  after  such  sale,  the  commissioner  must  file 
with  the  clerk  of  the  court  in  which  the  action  is  pend- 
ing, a  verified  report  and  account  of  the  sale,  together 
with  the  proper  affidavits,  showing  that  the  regular  and 
required  notice  of  the  time  and  place  of  the  sale  was 
given,  which  report  and  account  shall  have  the  same 
force  and  effect  as  the  sheriffs  return  in  sales  under 
execution.  In  all  cases  of  sales  made  by  a  commis- 
sioner, the  court  in  which  the  proceedings  are  pending 
shall  fix  a  reasonable  compensation  for  the  commis- 
sioner's services,  but  in  no  case  to  exceed  the  sum  of 
ten  dollars."     {Sec.  y2g  C.  C.  P.) 


CHAPTER   XIX. 


FRAUDULENT   TRANSFERS. 


§  591 
§   592 

§  593 
§  594 
§  595 
§  596 
§  597 
§  598 

§  599 
§  600 
§  601 
§  602 
§  603 
§  604 
§  605 
§  606 
§  607 


Fraudulent  Transfers,  Generally. 
Code  Provisions  in  California. 
Statutory  Provisions  in  Other  States. 
General  Principles — Leading  Cases. 
Nature  of  the  Transfer  Required. 
Change  of  Possession  a  Question  of  Fact. 
Remedy  of  the  Creditor. 
Resumption  of  Possession. 
Subsequent  Employment  of  Vendor. 
Sale  of  Property  in  Vendee's  Possession. 
Property  in  Hands  of  Third  Party. 
Transfer  of  Cumbrous  Personal  Property. 
Transfer  of  Lodging  House  Furniture. 
Transfer  of  Undivided  Interest. 
Personal  Property  on  Land  Conveyed. 
Cattle,  Hogs,  etc.,  on  a  Ranch. 
Purchasers  in  Good  Faith. 


§  591.     Fraudulent  Transfers,  Generally.^One 

of  the  most  difficult  obstacles  encountered  by  officers 
in  holding  property  belonging  to  the  judgment  debtor 
in  executions,  arises  from  the  facility  with  which  trans- 
fers may  Ix'  made  of  personal  j^roperty.  As  if  in  con- 
templation of  fraiiduiciU  inttnition  on  the  part  of  ven- 
dors who  arc  or  arc  about  to  become  insolvent,  the 
law  has  ofldi  hedged    such   sales  around  with  strongly 


FRAUDULENT    TRANSFERS.  §  592 

expressed  provisions  in  favor  of  the  creditor  who  is  in 
pursuit  of  his  claim.  Not  only  are  transfers  declared 
to  be  void  which  are  proven  to  be  fraudulent,  but  the 
burden  of  proving  fraud  is  in  some  cases  by  statute 
not  only  removed  from  the  creditor,  but  transfers, 
under  certain  circumstances,  are  to  be  conclusively 
presumed  to  be  fraudulent.     (See  Sees.  ^g2-j,  post.) 

Where  the  presumption  prevails  to  such  extent,  an 
inquiry  into  the  consideration  paid  or  the  good  faith 
of  the  transaction  is  immaterial.  ( Woods  vs.  Bugbey, 
2g  Cal.  ^Sy;  Brown  vs.  O  Neal,  95  Cal.  262.) 

§  592.    Code  Provisions  in  California. — By  the 

terms  of  Sec.  3440  of  the  Civil  Code  : — 

"  Every  transfer  of  personal  property,  other  than  a 
thing  in  action,  or  a  ship  or  cargo  at  sea  or  in  a  foreign 
port,  and  every  lien  thereon,  other  than  a  mortgage, 
when  allowed  by  law,  and  a  contract  of  bottomry  or 
respondentia,  is  conclusively  presumed,  if  made  by  a 
person  having  at  the  time  the  possession  or  control  of 
the  property,  and  not  accompanied  by  an  immediate 
delivery,  and  followed  by  an  actual  and  continued 
change  of  possession  of  the  things  transferred,  to  be 
fraudulent,  and  therefore  void,  against  those  who  are 
his  creditors  while  he  remains  in  possession,  and  the 
successors  in  interest  of  such  creditors,  and  against  any 
persons  on  whom  his  estate  devolves  in  trust  for  the 
benefit  of  others  than  himself,  and  against  purchasers 
or  incumbrancers  in  good  faith  subsequent  to  the  trans- 
fer." 

All  transfers  of  personal  property,  founded  in  actual 
fraud,  are  also  declared  to  be  void  as  against  creditors, 
{Sec.  34sg  Civil  Code. ) 

In   this  State  the  statute  stands  upon  the  extremest 


^  593  P^RAUDULENT  TRANSFERS. 

rule  of  caution  and  promptitude.  The  statute  makes 
certain  facts  conclusive  evidence  of  fraud,  and  whatever 
may  or  may  not  be  the  actual  intention  of  the  parties, 
if  the  actual  facts  exist  which  are  contemplated  by  the 
law,  the  sale  is  void.  The  language  of  the  statute  is 
exceedinelv  stroncr  and  the  intention  manifest.  The 
change  of  possession  from  the  vendor  to  the  vendee 
must  not  only  be  actual  but  also  continued.  The  ob- 
ject of  the  statute  being  the  prevention  of  fraudulent 
sales  of  goods,  no  means  more  simple  and  efficient 
could  have  been  adopted  to  have  accomplished  the  end 
intended,  than  that  requiring  this  actual  and  continued 
change  of  possession.  It  takes  away  from  the  parties 
the  means  of  carrvincr  out  their  fraudulent  intent,  and 
removes  the  temptation.  As  the  fraudulent  vendor 
cannot  remain  in  possession,  under  any  pretense  what- 
ever, he  is  compelled  to  trust  entirely  to  the  fidelity  of 
the  fraudulent  vendee. 

§  593.  Statutory  Provisions  in  Other  States. 

— In  Arizona,  Colorado  and  Nevada,  the  statutes  are 
substantially  the  same  as  in  California,  requiring  actual 
and  continued  change  of  possession,  in  Arizona,  how- 
ever, the  presumption  of  fraud  being  only  prima  facie 
and  not  conclusive.  In  these  states,  and  also  in  Ore- 
gon, all  conveyances  of  property,  either  personal  or 
real,  made  with  actual  intent  to  defraud  creditors,  are 
declared  to  bt- void.  In  the  State  last  named  all  trans- 
fers of  property,  made  in  trust  for  the  person  making 
the  same,  an;  void  arainst  creditors. 

Arizona.    Sees.  20 j^,  20JI-2  Revised  Slahifes,  i88j. 

Colorado.     Sees,  f ^2  ?,  1 526  General  Statutes,  i88j. 

JVevada.     Sees.  26jj,  26j8  General  Statutes,  188$. 

Oregon.     See.  J0S9  ^ ^  ! fill's  Codes,  i8g2. 


FRAUDULENT    TRANSFERS.  §  594 

§  594.    General  Principles— Leading  Cases.— 

There  are  numerous  instances  of  record  in  which  courts 
have  been  called  upon  to  make  a  practical  application 
of  the  principle  that  a  vendee  of  personal  property 
must  assume  at  once  all  external  indicia  of  title,  in 
order  to  protect  himself  against  the  creditors  of  the 
vendor.  The  leading  case  in  California  is  that  of  Ste- 
vens vs.  Irwin,  15  Cal.  503.  In  that  case  the  Court 
said: — 

"The  word  'actual'  was  desiofned  to  exclude  the  idea 
of  a  mere  formal  change  of  possession,  and  the  word 
'continued '  to  exclude  the  idea  of  a  mere  temporary 
chancre.  But  it  never  was  the  desitrn  of  the  statute  to 
give  such  extension  of  meaning  to  this  phrase,  'contin- 
ued change  of  possession,'  as  to  require  that  the  vendor 
should  never  have  any  control  over  or  use  of  them. 
This  construction,  if  made  without  exception,  would 
lead  to  very  unjust  and  very  absurd  results. 

"The  'continued  change  of  possession,'  then,  does 
not  mean  a  continuance  for  all  time  of  this  possession, 
or  a  perpetual  exclusion  of  all  use  or  control  of  the 
property  by  the  original  vendor.  A  reasonable  con- 
struction must  be  given  to  this  language,  in  analogy  to 
the  doctrines  of  the  courts  holding  the  general  princi- 
ples transcribed  into  the  statute.  The  delivery  must 
be  made  of  the  property;  the  vendee  must  take  the 
actual  possession;  that  possession  must  be  open  and 
unequivocal,  carrying  with  it  the  usual  marks  and  indi- 
cations of  ownership  by  the  vendee.  It  must  be  such 
as  to  orive  evidence  to  the  world  of  the  claims  of  the 
new  owner.  He  must,  in  other  words,  be  in  the  usual 
relation  to  the  property  which  owners  of  goods  occupy 
to  their  property.  This  possession  must  be  continuous 
— not  taken  to  be  surrendered  back  aeain — not  formal 


§  594  FRAUDULENT    TRANSFERS. 

but  substantial.  But  it  need  not  necessarily  continue 
indefinitely,  when  it  is  bona  fide  and  openly  taken,  and 
is  kept  for  such  a  length  of  time  as  to  give  general 
advertisement  to  the  status  of  the  property  and  the 
claims  to  it  by  the  vendee," 

This  case  has  been  cited  and  quoted  with  approval 
in  a  long  line  of  cases  from  19  Cal,  334,  to  98  Cal,  454. 
In  Godchaux  vs.  Mulford,  26  Cal,  323  (see  also  this 
section,  post)  the  Court  say  that  in  Stevens  vs.  Irwin,  for 
the  first  time  in  this  State,  the  true  and  rational  expo- 
sition of  the  rule  was  given.      (See  also  Sec.  ^g^,  post.) 

In  Godchaux  vs.  Mulford,  26  Cal,  316,  another  lead- 
ing case,  the  court  said:  "A  hired  clerk  or  salesman  is 
no  more  in  possession  of  the  goods  of  his  employer 
than  a  hired  laborer  is  in  possession  of  the  farm  on 
which  he  is  employed  at  work.  The  employment  o\ 
the  vendor  in  a  subordinate  capacity  is  colorable  onK 
and  not  conclusive  upon  the  question  as  to  whether 
there  has  been  an  immediate  delivery  and  an  actual 
change  of  the  possession.  He  cannot  be  allowed  to 
remain  in  the  apparently  sole  and  exclusive  possession 
of  the  goods  after  the  sale,  for  that  would  be  inconsist- 
ent with  such  an  open  and  notorious  delivery  and 
actual  change  as  the  statute  exacts  in  order  to  exclude 
from  the  transaction  the  idea  of  fraud.  But  if  it  be 
apparent  to  all  the  world  that  he  has  ceased  to  be  the 
owner,  and  another  has  acquired  and  openly  occupied 
that  position,  that  he  has  ceased  to  be  the  principal  in 
the  change  and  management  of  the  concern,  and  become 
only  a  subordinate,  or  clerk,  the  reason  of  the  rule  an- 
nounced in  the  statute-  is  satisfied."  This  case  has  been 
cited  on  this  point  with  approval  in  29  Cal.  472,  66 
Cal,  544.  67  Cal.  2<S5,  -},  Cal.  402;  and  in  O'Ciara  vs. 
Lowry,  5  W.  C.  Rep.  417  (1885),  the  above  language 
was  quoted   with  approval,      (.See  aX'^o  Sec.  ^gg,  post.) 


FRAUDULENT    TRANSFERS.  §§  595,   596 

§  595.    Nature  of  the  Transfer  Required.—  1  he 

actual  change  of  possession  of  personal  property,  re- 
quired by  the  statute,  is  an  open,  visible  change,  man- 
ifested by  such  outward  signs  as  render  it  evident  that 
the  possession  of  the  vendor  has  wholly  ceased.  "Then, 
if  the  possession  of  the  property  by  the  vendors  had 
not  wholly  ceased  when  it  was  attached,  it  was  liable  to 
the  attachments,  notwithstanding,  as  between  the  ven- 
dors and  vendee,  the  sale  was  complete  and  the  title  to 
the  property  had  become  vested  in  the  plaintiff  as  the 
purchaser."  {Cahoon  vs.  Marshall,  2^  Cal.  201;  see 
also  Sec.  60^,  post. )  This  case  was  also  cited  with  ap- 
proval in  67  Cal.  285,  73  Cal.  402,  84  Cal.  171,  and  9] 
Cal.  295.      (See  also  Sec.  59/,  ante.) 

Under  a  statute  requiring  "an  immediate  delivery" 
of  personal  property  sold,  any  delivery  that  is  sufficient 
to  pass  the  title  as  between  the  parties  is  sufficient. 
The  further  requirement  of  an  "actual  and  continued 
change  of  possession  "  {Sec.  J440  Code  Civil  Procedure, 
Cal.)  is  intended  to  exclude  mere  formal  and  temporary- 
change  of  possession,  but  not  to  require  that  the  ven- 
dor should  never  have  any  control  over  them.  {Porter 
vs.  Bucher,  g8  Cal.  4S4-) 

\  596.    Change  of   Possession  a  Question  of 

Fact. — The  question  as  to  whether  the  sale  of  personal 
property  is  accompanied  by  an  immediate  delivery 
thereof  and  followed  by  an  actual  and  continued  change 
of  possession,  is  a  question  of  fact  for  the  jury. 
{Meads,  Seaman  &  Co.  vs.  Lasar,  g2  Cal.  221.) 

Every  case  of  this  kind  "has  its  own  particular  fea- 
tures, and  must  be  determined  on  the  particular  facts 
which  surround  the  g-iven  transaction  or  transfer." 
{Byrnes  vs.  Moore,  gj  Cal.  jgj.) 


§§  597~599        FRAunuLEXT  transfers. 

§  597.    Remedy  of  the  Creditor. — In  case  of  an 

attempted  transfer  of  personal  property  without  such 
change  of  possession  as  is  required  by  the  statute,  any 
creditor  of  the  vendor  "may  cause  the  property  to  be 
seized  in  the  same  manner  as  he  might  have  done  had 
there  been  no  attempted  transfer."  [Watson  vs.  Rod- 
gersy  S3  ^^^-  40^'  Broivn  vs.  0"  Neal,  95  Cal.  262.) 

§  598.    Resumption  of  Possession. — In  case  of 

a  transfer  of  a  mare  and  a  header  by  father  to  son,  the 
court  quoted  from  13  Vt.  284  with  approval,  as  fol- 
lows: "After  a  sale  of  personal  chattels  has  become 
perfected  by  such  a  visible,  notorious  and  continued 
change  of  possession  that  the  creditors  of  the  vendor 
may  be  presumed  to  have  notice  of  it,  the  vendee  may 
lend  or  let,  or  employ  the  vendor  to  sell,  or  perform 
any  other  service  about  the  thing,  with  the  same  safety 
he  may  a  stranger."  {Gould vs.  Huntley,  /j  Cal.  402.) 
See  also  Sec.  59./,  ante. 

§  599.    Subsequent  Employment  of  Vendor. — 

The  employment  of  the  vendor  by  the  vendee  after 
the  sale  is  not  conclusive  evidence  of  fraud,  but  is  an 
element  of  such  proof  {Godchaux  vs.  Afztl/oj'd,  26 
Cal.  J 1 6;  Sec.  59^,  ante. ) 

In  the  case  of  Weil  vs.  Paul,  22  Cal.  493,  one 
Strauss,  a  clothing  merchant,  whose  goods  were  under 
attachnKHit,  sold  them  to  Weil,  who  procured  the  re- 
lease of  the  attachment,  and  removed  the  stock  to  his 
(Weil's)  cigar  store.  Within  less  than  two  weeks 
thereafter  Strauss  was  engaged  professedly  as  employe 
of  Weil  in  peddling  out  the  goods  and  managing  their 
sale  at  retail,  in  which  condition  they  were  again  at- 
tached as    the   property   of    Slrauss:    /fcld,   that  there 


FRAUDULENT    TRANSFERS.  §§  60O-602 

was  no  such  actual  and  continued  change  of  possession 
as  was  required  by  the  fifteenth  section  of  the  Statute 
of  Frauds,  and  that  the  goods  were  therefore  liable  to 
the  attachment. 

§  600.  Sale  of  Property  in  Vendee's  Posses- 
sion.— In  case  of  a  sale  of  horses  already  in  the  posses- 
sion of  the  vendee,  followed  by  an  immediate  removal 
to  another  ranch  owned  by  him,  the  court  held  that 
"the  delivery  and  possession  were  as  complete  as  the 
nature  of  the  case  permitted."  {Hogan  vs.  Coivell,  yj 
Cal.  211.) 

§  601.    Property  in  Hands  of  Third  Party. — 

If  a  v^endor  of  goods  in  the  care  and  keeping  of  a 
third  person  directs  him  to  deliver  them  to  the  ven- 
dee, and  the  party  holding  the  goods  consents  to  retain 
the  goods  for  him,  and  does  so  retain  them,  it  is  a  suf- 
ficient delivery  and  change  of  possession  to  satisfy  the 
requirements  of  the  statute.  (  Williams  vs.  Lerck,  $6 
Cal.  J  JO.) 

\  602.  Transfer  of  Cumbrous  Personal  Prop- 
erty.— What  acts  will  amount  to  an  immediate  and  an 
actual  and  continued  change  of  possession  of  personal 
property  of  a  cumbrous  and  ponderous  nature  must 
depend  in  a  great  degree  upon  the  circumstances  of  the 
particular  case;  but  care  should  be  taken  in  such  cases 
to  keep  in  view  the  object  of  the  statute,  and  to  exact 
nothing  less  than  a  substantial  observance  of  its  salu- 
tary provisions. 

The  purchaser  or  mortgagee  of  a  kiln  of  bricks, 
while  being  burned,  must  take  that  possession  of  the 
propertv  which  places  him  in   the  relation  to  the  same 


§§  603-605  FRAUDULENT    TRANSFKRS. 

that  owners  usually  have  to  a  like  kind  of  property,  in 
order  to  secure  it  against  attaching  creditors  of  the 
vendor.  If  the  owner  of  the  kiln,  before  the  burning 
of  the  same  has  been  completed,  makes  a  sale  thereof  in 
good  faith,  and  for  a  valid  consideration,  to  a  creditor, 
and  the  vendor  completes  the  burning  of  the  kiln,  ex- 
ercising the  same  apparent  control  as  before,  the  sale 
is  to  be  deemed  fraudulent  as  to  an  attaching  creditor 
for  want  of  a  change  of  possession.  (  Woods  vs.  Btig- 
bey,  2g   Cal.  466;  cited  with  approval   in  7/   Cat.  221.) 

\  603.    Transfer  of  Lodging  House  Furniture. 

— -A  lodging  house  keeper  sold  all  the  furniture  for  a 
full  consideration  to  a  person  who  assumed  immediate 
possession;  the  vendor  notified  the  lodgers  at  once,  but 
did  not  leave  the  house  for  five  days,  owing  to  sick- 
ness; the  transfer  was  held  good  as  against  a  writ 
ao-ainst  the  vendor,  levied  just  after  she  left  the  house. 
{Ross  vs.  Sedgivick,  6g  Cal.  24"/.) 

I  604.    Transfer  of  Undivided  Interest.    In  a 

case  involving  the  sale  of  an  undivided  interest  in  a 
horse,  it  was  held  that  where  one  co-owner  of  personal 
proj^erty,  who  is  in  sole  possession,  sells  his  interest  to 
a  third  party,  there  must  be  an  immediate  delivery; 
but  that  the  other  co-owner  might  sell  his  interest  with- 
out the  necessity  of  a  change  of  possession.  [Broivn 
vs.  O'A^cd/,  ()j  Cal.  262.) 

I  605.     Personal  Property  on  Land  Conveyed. 

—  In  P)iiiiling  i's.  .Salt/,  S4  lal.  1 6S.  a  case  in\'olving 
the  transler  of  j)ers()nal  propcrt)'  locatetl  uj)on  land,  the 
title  to  which  was  also  attem|)tetl  to  be  transferred, 
th<'  lollouiiig  inslrLictioii  to  the  jury  was  held  to  be 
proper: 


FRAUDULENT    TRANSFERS.  S  6o6 

"The  possession  which  the  law  requires  the  vendee 
5lo  have,  after  a  transfer  to  him  of  personal  property, 
as  not  sufficient  if  it  amounts  simply  to  constructive 
possession,  or  the  mere  possession  which  the  law  at- 
taches to  the  ownership  of  the  land.  Therefore,  if  the 
personal  property  so  sold  is  located  on  land  to  which 
the  vendee  obtains  a  title  then  or  thereafter,  the  mere 
transfer  of  ownership  to  the  land  is  not  sufficient  to 
•constitute  a  change  of  possession  of  the  personal  prop- 
erty sold.  The  possession  of  the  personal  property 
must  be  in  some  way  so  changed  as  to  indicate  by  the 
chano^e  that  the  former  owner  no  longer  owns  it." 

In  the  same  case  the  court  quotes  with  approval 
from  Cahoon  z's.  Marshall,  25  Cal.  197,  as  follows: 
"The  possession  by  the  plaintiff  of  the  farm  upon 
which  the  personal  property  was  when  it  was  purchased 
by  her,  provided  it  was  an  actual  and  exclusive  posses- 
sion, would  be  strong  evidence  of  the  like  possession 
of  such  personal  property.  ,  .  .If  the  actual  and 
exclusive  possession  of  the  farm  would  be  strong  evi- 
dence of  his  like  possession  of  the  personal  property, 
then  the  possession  of  the  farm  by  the  vendor,  or  the 
concurrent  possession  of  it  by  the  vendor  and  vendee, 
would  at  least  tend  verv  strong-lv  to  show  that  the 
plaintiff  had  not  that  actual  possession  of  the  personal 
property  necessary  to  place  it  beyond  the  reach  of  the 
creditors  of  the  vendor." 

§  606.    Cattle,  Hogs,  etc.,  on  a  Ranch. — In  a 

case  involvinc:  the  transfer  of  an  undivided  interest  in 
a  band  of  cattle  on  an  extensive  ranofe,  certain  acts  of 
the  vendee — riding  over  the  range  and  looking  after 
them — were  held  sufficient  to  justify  the  verdict  of  a 
jury  holding  the  transfer  to  be  valid.  {Hart  vs.  Mead, 
S4  Cal.  2^4.) 


§  607  FRAUDULENT    TRANSFERS. 

A  sale  of  hogs,  allowed  to  remain  upon  a  ranch  in 
charge  of  the  same  persons  as  before  the  sale,  does  not 
satisfy  the  California  statute,  although  such  persons 
were  requested  to  take  charge  for  the  buyer  and  con- 
sented to  do  so.      (Mosg7^ove  vs.  Harris,  g4  Cal.  162.) 

§  607.  Purchasers  in  Good  Faith. — "The  pur- 
chaser or  incumbrancer  in  good  faith,"  who  is  protected 
by  the  statute  against  fraudulent  transfers,  must  be  one 
who  not  only  acquired  without  notice  of  the  infirmity 
of  his  vendor's  title,  but  must  have  parted  with  value. 
(Brown  vs.  Reed,  yy  Cal.  544.) 


CHAPTER  XX. 


§  60S 
§  609 
§  610 
§  611 
§  612 
§  613 
§  614 
§  615 
§  616 
§  617 
§  618 
§  619 
§  620 
§  621 
§  622 


FIXTURES. 

Fixtures,  Generally. 

California  Code  Definitions. 

General  Rule  in  California. 

Intention  to  Govern,  Generally. 

Limitation  of  the  Rule. 

Engines,  Boilers  and  Machinery. 

Buildings — Question  of  Fact. 

Building — When  Removable. 

Omission  in  Lease  No  Estoppel. 

Renewal  of  Lease. 

Mortgagee  of  Lessee. 

Fixtures  on  Public  Lands. 

When  Fixtures  Become  Personal  Property. 

How  to  Levy  upon  Fixtures  on  Realty. 

Leading  Case  Quoted. 


§  608.    Fixtures,  Generally. — The  question  often 

arises  as  to  whether  property  is,  in  contemplation  of 
law,  "personal"  in  nature,  or  whether  it  has  become 
part  of  the  realty  upon  which  it  has  been  placed.  Upon 
the  determination  of  this  question  will  depend,  not  only 
the  legal  status  of  such  property,  as  "real"  or  "personal," 
but  its  ownership;  and  both  these  points  become  mate- 
rial in  the  consideration  of  it  as  the  subject  of  legal 
process.  The  question — as  to  when  property,  prima- 
rily personal,  becomes  a  part  of  the  realty  and  cannot 


24 


§  6o8  FIXTURES. 

be  removed — arises  in  two  widely  different  classes  of 
cases,  /.  e.,  between  vendor  and  vendee  as  to  the  right 
of  the  former  to  retain,  and  between  owner  and  lessee 
as  to  the  right  of  the  latter  to  remove  such  property 
from  the  realty. 

Upon  few  subjects  have  there  been  more  numerous 
or  more  diverse  decisions  by  the  courts.  Though  no 
great  difficulty  appears  at  first  sight  in  the  definition 
itself,  yet  the  application  to  particular  facts  has  vexed 
the  courts  and  given  rise  to  an  endless  conflict  of  de- 
cisions. Kent  defines  a  fixture  to  be  "an  article  of  a 
personal  nature  affixed  to  the  freehold."  It  has  been 
held  that  by  the  expression  "annexed  to  the  freehold" 
is  meant,  fistened  to  or  connected  with  it;  mere  juxta- 
position, or  the  laying  of  an  object,  however  heavy,  on 
the  freehold,  does  not  amount  to  annexation. 

The  author  of  "Smith's  Leading  Cases"  says:  "The 
general  rule  appears  to  be  that,  where  the  instrument 
or  utensil  is  an  accessory  to  anything  of  a  personal 
nature,  as  to  the  carrying  on  a  trade,  it  is  considered  a 
chattel ;  but  where  it  is  a  necessary  accessory  to  the 
'tmjoyment  of  the  inheritance,  it  is  to  be  considered  as 
a  part  of  th(;  inheritance.'"  Again:  "The  general  rule 
governing  this  subject  is  that  the  tenant,  if  he  have 
annexed  anything  to  the  freehold  during  his  term,  can- 
not again  remove  it  without  the  consent  of  his  land- 
lord.'" 

As  betwcH'n  the  landlord,  who  is  the;  owner  of  the 
freehold,  and  the  tenant,  the  oencral  rule  is  that,  dur- 
ing  his  term,  the  tenant  may  remove  fixtures  erected 
or  i)laced  1)\  himsetlf  things  en-cted  for  the  personal 
convriiicncc  ol  the  tenant,  which  arc  personal  in  th(;ir 
natun-,  such  as  a  cider  mill,  to  be  used  during  tenancy. 
l)Ut  il  he  suffers  iheni  lo  remain  fixed  after  his  tt^nancy 


FIXTURES.  ^  609 

expires,   and  ht:  quits  the  possession  of  the  land,   he 
cannot  enter  to  remove  them. 

The  rule  as  to  fixtures  is  construed  most  strongly  in 
favor  of  the  vendee  in  case  of  a  sale,  and  in  favor  of 
the  tenant  in  case  of  a  lease.  "The  general  rule  of 
law  is  that  whatever  is  once  annexed  to  the  freehold 
becomes  parcel  thereof,  and  passes  with  the  convey- 
ance of  the  estate.  Though  the  rule  has  been  in 
modern  times  greatly  relaxed,  as  between  landlord  and 
tenant,  in  relation  to  the  things  affixed  for  the  purposes 
of  trade  and  manufacture,  and  also  in  relation  to  articles 
put  up  for  ornament  or  domestic  use,  it  remains  in  full 
force  as  between  vendor  and  vendee.  As  a  general 
thing,  a  tenant  may  remove  what  he  has  added,  when 
he  can  do  so  without  injury  to  the  estate,  unless  it  has 
become,  by  its  manner  of  addition,  an  integral  part  of 
the  original  premises  ;  but  as  against  a  vendor,  all  fix- 
tures pass  to  his  vendee,  even  though  erected  for  the 
purposes  of  trade  and  manufacture,  unless  specially 
reserved  in  the  conveyance."  {Field,  J.,  in  Saitds  vs. 
Pfeiffer.  10  Cal.  258.) 


\  609.     California  Code    Definitions— in  that 

portion  of  the  Civil  Code  of  California  relating  to  the 
"Nature  of  Property"  (Div.  2,  Fart  I,  Title  i)  it  is 
provided  that  real  property  consists  not  only  of  land^, 
but  that  which  is  either  affixed  to,  incidental  or  appur- 
tenant to  land,  or  immovable  by  law  {Sec.  6j8),  and 
that  "a  thing  is  deemed  to  be  affixed  to  land  when  it 
is  attached  to  it  by  roots,  as  in  the  case  of  trees,  vines 
or  shrubs  ;  or  imbedded  in  it,  as  in  the  case  of  walls ; 
or  permanently  resting  upon  it,  as  in  the  case  of  build- 
ings ;  or  permanently  attached  to  what  is  thus  perma- 
nent, as  by  means  of  cement,   plaster,   nails,  bolts,  or 


§§  6lO-6l2  FIXTURES. 

screws."  [Sec.  660.)  Fixtures  attached  to  mines  are 
declared  by  Sec.  661  of  the  Civil  Code  to  be:  "Sluice 
boxes,  flumes,  hose,  pipes,  railway  tracks,  cars,  black- 
smith shops,  mills  and  all  other  machinery  or  tools 
used  in  working  or  developing  a  mine." 

§  610.    General  Rule  in  California.— Whatever 

the  owner  of  real  property  has  annexed  to  it  for  the 
more  convenient  use  and  improvement  of  the  premises, 
passes  by  his  deed,  but  whatever  chattels  a  tenant  has 
annexed  to  or  placed  upon  the  land  for  the  purposes 
of  trade,  manufacture,  agriculture  and  domestic  con- 
venience, may  be  removed  by  him,  with  an  exception 
in  case  it  cannot  be  removed  without  practically  de- 
stroying it,  or  where  it  has  become  essential  to  that 
to  which  it  has  been  attached.  i^Fratt  vs.  Whittiei\ 
^8  Cal.  I  JO,  iji;  Hendy  vs.  Dinkerhoff,  SJ  Cal.  6. ) 

§  611.    Intention   to  Govern,  Generally. — In 

order  to  determine  whether  a  thing  is  a  fixture  or  not. 
we  must  look  at  the  manner  in  which  it  is  annexed, 
the  intention  of  the  person  who  made  the  annexation, 
and  the  purpose  for  which  the  premises  are  used. 
{Lavenson  vs.  Standard  Soap  Co.,  80  Cal.  2^0;  2  Kent, 

J 3  ^^■343-) 
§  612.     Limitation  of  the  Rule. — While  the  in 

tention  of  the  ann(jxation  will  govern,  as  a  general  rule, 
this  must  be  limited  where  the  subject  or  mode  of 
annexation  is  such  that  th(;  attributes  of  personal  ])rop- 
erty  cannot  be  predicated  of  the  thing  in  controversy, 
and  it  has  b(*com<*  so  absorbed  or  merged  into  the 
reait)'  thai  its  idciuiix  as  personal  property  is  lost,  as 
when  the  projjerty  could  not  be  removed  without  prac- 


FIXTURKS.  §  613 

tically  destroying  it,  or  where  it  or  part  of  it  is  essen- 
tial to  the  support  of  that  to  which  it  is  attached. 
'{Hendy  vs.  Dinkerhoff,  ^j  Cal.  6.^) 

§  613.    Engines,    Boilers    and    Machinery. — 

The  rule  in  reference  to  fixtures  is  applied  with  differ- 
ent degrees  of  strictness  as  between  different  parties. 
Engines,  boilers,  machinery  and  the  like,  which  could 
properly  be  removed  by  the  tenant,  as  between  him  and 
his  landlord,  might,  if  placed  there  by  the  owner  of  the 
land,  be  considered  a  part  of  the  realty  and  pass  by 
■conveyance  of  the  same,  as  between  vendor  and  ven- 
dee. {^McGreary  vs.  Osborne,  g  Cal.  iig;  Fratt  vs. 
Whittier,  ^8  Cal.  ijo.)  An  engine  resting  upon  and 
fastened  by  bolts  and  nuts  to  timbers  which  are  im- 
bedded in  the  soil,  is  a  part  of  the  realty,  so  as  to  pass 
by  deed  of  the  same;  also  a  steam  boiler  secured  by 
trestlework  imbedded  in  the  soil  and  resting  on  and 
surrounded  by  mason  work  of  stone  and  mortar  built 
on  the  ground.  (McKiernan  vs.  Hesse,  5/  Cal.  594-) 
In  the  same  case,  it  was  held  that  such  property  passed, 
although  placed  by  third  parties  upon  the  land  while 
owned  by  the  United  States. 

"The  engines  and  boilers,  etc.,  used  in  a  flour  mill, 
being  permanently  fastened  to  the  mill,  which  had  its 
foundation  in  the  ground:  Held,  to  be  fixtures  covered 
by  a  mortgage  upon  the  premises,  though  put  up  after 
the  execution  of  the  mortgage,  and  held  to  pass  to  the 
purchaser  of  the  mortgaged  premises  under  a  decree 
of  foreclosure."  {Sands  vs.  Pfeiffer,  10  Cal.  2^8; 
Field,  J.  ) 

A  tenant  who  puts  up  machinery  for  a  mill,  in  a 
house  leased,  and  fastens  it  by  bolts,  screws,  etc.,  to  the 
liouse,   has    the   rio^ht   to   remove    it;  but,   as    between 


6l^  FIXTURES. 


v5 


vendor  and  vendee,  such  machinery  would  be  consid- 
ered as  a  part  of  the  realty.  {McGreary  vs.  Osborne, 
g  Cal.  II g.) 

A  steam  eno-ine  and  boiler,  fastened  to  a  frame  of 
timber,  bedded  in  the  ground  of  a  quartz  ledge  sufficient 
to  make  it  level,  with  a  roof  or  shed  to  protect  the 
machinery,  and  used  for  the  purpose  of  working  the 
ledge,  are  so  annexed  to  the  freehold  as  to  become  a 
fixture.  Such  machinery,  when  applied  to  quartz  leads, 
is  a  trade  fixture,  removable  by  the  tenant,  if  otherwise 
entitled  to  remove  it.  But  this  removal  can  only  be 
during  the  tenancy,  and  during  such  further  period  of 
possession  by  the  tenant  as  he  holds  the  premises  tin- 
der a  right  to  still  consider  himself  a  tenant,  and  not 
during  the  time  he  may  actually  hold  possession  after 
his  lease  has  expired.  Such  machinery,  so  fixed,  is 
included  by  the  phrase  in  the  lease,  "improvements 
that  may  be  put  up  on  the  ground  for  working  the 
lead."  And  where  the  lease  stipulated  that  the  im- 
provements shall  go  to  the  lessor  on  termination  of  the 
lease,  if  the  rent  was  not  paid,  or  if  the  lessee  declined 
to  purchase,  as  per  the  lease  he  might,  the  lessor's 
right  to  the  fixtures  is  not  destroyed  by  the  tenant  con- 
tracting, subsequently,  to  buy,  and  taking  a  bond  for 
title  on  payment  of  the  purchase  money,  but  failing  to 
fulfill  his  bond.      {Merritt  vs.  Jndd,  /./  Cal.  60.) 

An  engine,  boiler  and  machinery  for  a  flouring  mill, 
erected  by  a  lessee  on  the-  demistnl  j)remises,  and  se- 
curely attachctd  thereto  l>\  bolts  and  screws,  are  fixtures 
as  betw(-en  him  and  his  attaching  creditors,  notwith- 
standing an  agreement  Ix.'tween  the  lessor  and  lessee 
that  the  latter  should  be  at  liberty  to  remove  the  ma- 
chinery upon  the  e\|)iration  of  the  lease.  The  sever- 
ance and  removal  of  the  fixtures  by  the  lessee  converts 


FIXTURES.  ?  614 

them    into    personalty.      {McNally   2>s.    Connolly,    yo 
CaLj.) 

§  614.  Buildings  Question  of  Fact.— A  build- 
ing," without  other  qualification  or  term  of  description, 
is  essentially  personal  property,  and  the  mere  erection 
of  it  upon  land  does  not  necessarily  make  it  a  fixture. 
The  question  is  one  of  fact,  to  be  determined  upon  the 
evidence  in  each  particular  case.  {Miller  I's.  IVad- 
dinghavi,  gi  Cal.  j///  Diets  vs.  M.  Transfer  Co.,  g^ 
Cell.  g2.)  A  building  set  upon  blocks  resting  on  the 
ground  is  personal  property,  and  replevin  lies  to  re- 
cover it.      {Pennybecker  vs.  McDougal,  48  Cal.  160.) 

D  purchased  a  lot  of  land  at  sheriff's  sale  on  execu- 
tion, and  entered  into  possession  and  erected  certain 
buildings  thereon.  On  the  twenty-fifth  day  of  May, 
1858,  D  removed  the  buildings.  On  the  same  day  the 
buildings  were  removed,  the  defendants  in  execution 
sold  the  premises  to  F,  and  a  day  or  two  after  T  re- 
deemed the  lot  from  the  sale,  and  then  brought  suit 
against  D  to  recover  the  value  of  the  buildings:  Held, 
that,  as  there  was  no  evidence  that  the  buildings  were 
attached  to  the  soil,  T  cannot  recover.  ( Tyler  vs. 
Decker,  10  Cal.  4j6.) 

In  the  absence  of  any  agreement  to  the  contrary,  a 
dwelling-house  and  barn  erected  upon  the  land  of  his 
landlord  by  a  tenant  becomes  a  part  of  the  realty.  A. 
lessee,  before  the  expiration  of  his  term,  erected  a  house 
and  barn  on  the  leased  premises.  At  the  expiration 
of  the  term,  a  new  lease  was  taken  of  the  premises, 
without  reserving  the  rights  of  the  lessee  to  the  build- 
ings  so  erected:  Held,  that  the  buildings  become  fix- 
tures annexed  to  the  land,  and  that  the  lessee  had  no 
right  to  remove  them.      [Marks  vs.  Ryan,  6j  Cal.  loy.) 


§5  6  I  5,   6l6  FIXTURES. 

§  615.    Building — When  Removable.— A  build- 

mcr  erected  on  leased  orround  for  a  lumber  office  and 
sleeping  place  for  employes  In  a  lumber  yard,  and  which 
rests  upon  short  posts  on  top  of  sills  laid  upon  the 
ground,  constitute  trade  fixtures,  removable  by  the  ten- 
ant. {Security  L.  and  T.  Co.  vs.  Willamette  S.  M.  L. 
and  M.  Co.,  gg  Cal.  6j6.) 

§  616.    Omission   in  Lease  No   Estoppel.—  'x\ 

party  who  has  placed  improvements  and  fixtures  upon 
land  which  he  has  leased  upon  condition  that  he  should 
have  the  right  to  remove  them,  cannot  be  estopped 
from  taking  them  away,  even  though  he  may  have  in- 
advertantly signed  a  lease  with  no  such  conditions 
therein.  In  the  case  of  Isenhoot  vs.  Chamberlain, 
plaintiff  and  defendant  entered  into  an  agreement  for 
the  lease  of  land  upon  certain  conditions  named  in  the 
lease,  and  the  further  condition  that,  on  or  before  the 
expiration  of  the  lease,  defendant  should  have  the  right 
to  remove  from  the  land  certain  fixtures  and  improve- 
ments previously  placed  there  by  him.  During  nego- 
tiations for  the  lease,  plaintiff  at  all  times  admitted  that 
defendant  was  the  owner  of  the  improvements  and  fix- 
tures, and  entitled  to  remove  them,  and  that  the  riorht 
of  removal  should  be  a  condition  of  the  lease.  The 
lease  was  reduced  to  writing  by  the  procurement  of 
the  i>lalntlff  (lessor),  and  when  read  to  defendant 
(lessee)  he  refused  to  sign  the  same  unless  such  condi- 
tion was  added  to  the  lease.  But,  upon  being  informed 
by  the  plaintiff  that  h(t  (plaintiff)  knew  the  fixtures  and 
imi^rovemcnts  ixtloiiged  to  defendant,  and  that  the 
omission  of  the  conditions  from  th(!  lease  would  make 
no  dIffc.rciHc,  .md  thai  defendant  should  ha\e  the  right 
of  n;mo\al,   the  defendant  accepted    the  assurance  of 


FIXTURES.  §§617-620 

plaiiitifit,  and,  relying  thereon,  and  believing  in  the  good 
faith  of  plaintiff,  was  induced  to,  and  did,  execute  the 
lease,  omitting  the  condition:  Held,  plaintiff  was  es- 
topped from  claiming  the  improvements  and  fixtures, 
and  that  defendant,  having  commenced  to  remove  the 
same  previous  to  the  expiration  of  the  lease,  would  not 
be  restrained  by  injunction;  and  that  defendant  was  en- 
titled to  have  the  lease  reformed.  (Isenhoot  vs.  Cham- 
berlain, 59  Cal.  6 JO.) 

§  61;.  Renewal  of  Lease. — When  a  lessee  has 
placed  upon  land  improvements  which  would  pass  as 
between  vendor  and  vendee,  his  right  to  remove  them 
is  terminated  by  taking  a  new  lease  without  reserving 
his  right  to  the  improvements,  {Merritt  vs.  Judd, 
14  Cal.  60;  Mark  vs.  Ryan,  6j  Cal.  loj.) 

§  618.    Mortgagee  of  Lessee. — Although  a  lessor 

of  land  cannot,  in  a  given  case,  claim  the  fixtures,  it  is 
otherwise  of  the  mortofaoree  of  the  lessee.  Here  the 
question  is  between  grantor  and  grantee,  and  the  latter 
holds  all  fixtures,  whether  for  trade  or  manufacture, 
agriculture  or  habitation.  {^Merritt  vs.  Judd,  14  Cal. 
60.) 

§  619.    Fixtures  on  Public  Lands. — A  fixture  is 

an  article  of  a  personal  nature  annexed  to  the  freehold, 
and  may  exist  on  public  land.  Although  placed  there  by 
third  parties,  it  passes  to  the  purchaser  who  acquires 
title  from  the  government.  {Merrill  vs.  Jtidd,  14  Cal. 
60;  Mc Kiernan  vs.  Hesse,  5/  Cal.  5^4.) 

\  620.  When  Fixtures  Become  Personal  Prop- 
erty.— By  the  wrongful  se\erance  from  the  premises, 


§§  62  1,   62  2  P'lXTURES. 

the  fixtures  become  personal  property,  for  the  recovery 
of  which  an  action  of  replevin  will  lie  by  the  purchaser 
after  he  obtains  the  sheriff's  deed.  {Sands  vs.  Pfeiffer, 
10  Cal.  2^g;  McNally  vs.  Connolly,  jo  Cal.  6. ) 

§  621.    How  to  Levy  upon  Fixtures  on  Realty, 

— Where  the  attachment  or  execution  is  to  be  levied 
upon  steam  boilers,  engines,  pumps  or  other  articles 
that  have  been  attached  to  the  realty  so  as  to  become 
a  part  thereof,  the  levy  should  be  made  as  upon  realty. 
It  is  the  interest  of  the  defendant  in  the  land  which  is 
to  be  attached.  And  where  such  fixtures  are,  from 
their  nature  or  exposed  condition,  liable  to  clandestine 
removal,  or  injury  through  malice  or  otherwise,  the 
officer  will  be  justified  by  consent  of  the  plaintiff  in 
putting  a  keeper  in  charge  thereof  to  take  care  of  the 
property  so  that  he  may  have  it  intact  at  the  time  of 
sale.  If  the  plaintiff  decline  to  incur  the  expen.se  of  a 
keeper,  he  cannot  complain  of  laxity  on  the  part  of  the 
officer,  if  the  property  is  lost  or  injured  through  lack 
of  care  on  his  part. 

«5  622.  Leading  Case  Quoted. — The  leading  case 
in  California  upon  this  subject  is  that  of  Fratt  z'S, 
Whittier,  cited  ante  (Sec.  610);  and  as  the  court,  in  its 
opinion,  discussed  the  question  with*  great  thorough- 
ness, both  as  affecting  vendor  and  vendee,  and  also 
landlord  and  tenant,  a  large  portion  of  the  decision  is 
here  "-iven. 

"This  is  an  action  to  recover  certain  gas  fixtures, 
consistinLT  of  chantleliers,  Lflobes,  brackets,  burners, 
pendants,  etc.,  a  kitchen  range  with  boiler  attached,  a 
patent  water  filter,  tanks  and  window  screens.  The 
property    was    attached    to    a   building    known    as    the 


FIXTURES.  §  622 

Orleans  Hotel,  situate  on  a  lot  of  land  fronting  on 
Second  Street,  in  the  city  of  Sacramento.  As  owner 
of  the  hotel,  the  plaintiff,  on  Oct.  15,  1879,  contracted 
in  writing  to  sell  the  same  to  the  defendant,  by  the 
following  description,  viz.:  'Lot  No.  6,  in  the  square 
between  J  and  K  and  Front  and  Second  Streets,  in 
the  city  of  Sacramento,  and  the  appurtenances  and 
improvements  thereunto  belonging.' 

"The  sale  was  made  for  $28,000,  gold  coin,  payable 
after  an  examination  and  approval  of  the  title,  upon 
receiving  from  the  plaintiff  possession  of  the  property 
and  of  a  deed  of  grant  of  the  same,  on  or  before  the 
1st  of  November,  1879,  reserving  to  the  plaintiff, 
among  other  things,  the  right  within  ten  days  after 
delivery  of  possession,  to  remove  from  the  upper  rooms 
of  the  hotel  his  'furniture,  carpets,  and  pictures,  but 
none  of  the  permanent  fixtures  or  appurtenances  to 
said  property  shall  be  removed.'  On  the  25th  of  Oc- 
tober the  defendants,  having:  satisfied  themselves  about 
the  plaintiff's  title,  paid  the  full  amount  of  the  purchase 
money  and  received  from  the  plaintiff  possession  and 
a  deed  of  grant  of  the  property.  The  deed  described 
the  property  the  same  way  that  it  had  been  described 
in  the  contract  of  sale,  and  it  also  contained  the  recital 
that  the  deed  had  been  made  in  pursuance  of  the  con- 
tract of  sale  and  subject  to  the  terms,  conditions  and 
reservations  therein  contained.  Within  ten  days  after 
the  delivery  of  possession,  plaintiff  demanded  of  the 
defendants  the  privilege  of  removing  the  articles  in 
controversy  from  the  hotel,  which  being  refused,  this 
action  was  instituted,  and  the  question  arises  whether 
the  articles  are  personalty,  or  fixtures  which  passed 
as  appurtenances  of  the  realty  by  deed  of  grant. 

"If   the  question   arose   out   of   the    deed  alone,    it 


>  62  2  FIXTURKS. 

might  not  be  difficult  of  solution,  for  the  weight  of 
authority  seems  to  be  in  favor  of  the  proposition  that 
the)^  are  to  be  regarded  as  movable  property,  capable 
of  being  severed  from  the  building ;  yet  the  authorities 
upon  the  subject  are  conflicting."     ... 

"What  is  accessory  to  real  estate  is,  according  to  the 
rule  of  the  common  law,  part  of  it,  and  passes  with  it 
bv  alienation.  That  rule  has  been,  in  the  g-rowth  of 
the  law,  greatly  modified  as  between  landlord  and 
tenant,  for  the  encouragement  of  trade,  manufacture, 
agriculture  and  domestic  convenience  ;  and  courts  rec- 
ognize and  enforce  the  right  of  removal  by  a  tenant, 
of  chattels  annexed  to  the  freehold  for  such  purposes. 
But  the  rule  which  is  applicable  to  persons  in  that  re- 
lation does  not  apply  as  between  heir  and  executor, 
vendor  and  vendee.  As  between  the  latter,  the  rule 
of  the  common  law  is  still  applicable,  except  so  far  as 
it  may  be  modified  by  statutory  regulations  on  the 
subject ;  so  that  chattels  attached  to  the  freehold  by 
the  owner,  contributing  to  its  value  and  enjoyment, 
|)ass  by  the  grant  of  the  freehold,  if  the  grantor  had 
jjower  to  convey,  [l^ourtellot  vs.  Phelps,  4  Gray jj8.) 
And  after  conveyance,  they  cannot  be  severed  by  the 
vendor  or  anyone  else  than  the  owner. 

"As  between  vendor  and  vendee,  therefore,  the  rule 
tor  determining  what  is  a  fixture  is  always  construed 
strongly  against  the  seller.  Many  things  pass  by  a 
deed  of  a  house,  being  put  there  by  the  owner  and 
seller,  which  a  tenant  who  had  put  them  there  might 
have  removed,  and  they  will  be  regardt;d  as  fixtures, 
which  pass  to  the  v(;nde(;,  although  annexed  and  used 
lor  |nir|>()scs  ol"  trade,  manufacture,  or  for  ornament  or 
domestic  use.  Thus,  potash  kettles,  appertaining  to  a 
building   for   niiinufacturing  ashes   i^Millcr  vs.   Plwnb, 


FIXTURES.  §  622 

6  CoTVen  665;  S.  C.  16  Am.  Dec.  456);  a  cotton  gin 
fixed  in  its  place  (Bratton  vs.  Claussen,  2  Strob.  4y8)\ 
a  steam  engine  to  drive  a  bark  mill   [Oves  vs.  Oglesby, 

7  Watts,  io6)\  kettles  set  in  brick  in  dyeing  and  print 
works  {Dispatch  Line  vs.  Bellamy  Man.  Co.,  12  N.  H. 
20'f)\  iron  stoves  fixed  to  the  brick  work  of  chimneys 
[Goddard  vs.  Chase,  y  Mass.  4J2);  wainscot  work,  fixed 
and  dormant  tables,  engines  and  boilers  used  in  a  flour 
mill  and  attached  to  it  {Sands  vs.  Pfeiffer,  10  Cal.  2^g)\ 
a  steam  enm'ne  and  boiler  fastened  to  a  frame  of  timber 
and  bedded  in  a  quartz  ledge  and  used  for  the  purpose 
of  working  the  ledge  [Merrill  vs.  Judd,  14  Cal.  50);  a 
conduit  or  water  pipe  to  conduct  water  to  a  house 
{Philbrick  vs.  Ezving,  gy  Mass.  IJ4)\  hay  poles  in  use 
on  a  hop  farm  {Bishop  vs.  Bishop,  11  N.  Y.  I2j)\ 
statues  erected  for  ornament,  though  only  kept  in  place 
by  their  own  weight  {Snedeker  vs.  Warring,  12  N.  Y. 
lyo).  In  fact,  whatever  the  vendor  has  annexed  to  a 
building  for  the  more  convenient  use  and  improvement 
of  the  premises  passes  by  his  deed.  The  true  rule 
deduced  from  all  the  authorities,  says  the  Supreme 
Court  of  Vircrinia,  seems  to  be  this,  that,  when  the 
machinery  is  permanent  in  its  character  and  essential 
to  the  purpose  for  which  the  building  is  occupied,  it 
must  be  regarded  as  realty,  and  passes  with  the  build- 
ing; and  that  whatever  is  essential  for  the  purpose  for 
which  the  building  is  used,  will  be  considered  as  a  fix- 
ture, although  the  connection  between  them  may  be 
such  that  it  may  be  severed  without  physical  or  lasting 
injury  to  either.  {Green  vs.  Phillips,  26  Gratt.  y^2; 
Shelton  vs.  Ficklin,  j2  Id.  ySS-) 

"Judged  by  these  rules,  it  would  seem  as  if  there 
was  no  room  for  doubt  as  to  the  character  of  the  arti- 
cles in  controversy.      Taking  into  consideration  their 


§62  2  FIXTURES. 

nature,  the  circumstances  under  which  they  were  placed 
in  the  building,  the  mode  of  their  connection  with  it, 
and  the  relation  which  they  bear  to  its  use  and  enjoy- 
ment, they  must  be  regarded  as  essential  for  the  pur- 
poses for  which  the  building  was  used.  The  plaintiff 
himself,  by  his  testimony,  shows  that  the  globes  were 
lettered  'Orleans  Hotel,'  and  that  they,  with  the  chan- 
deliers, etc.,  were  necessary  for  furnishing  light  to  the 
building;  that  the  range  rested  on  a  foundation  of  brick, 
and  that  it  and  its  attachments  were  annexed  to  the 
building  bv  pipes,  which  connected  them  with  the  tanks 
and  filters  on  the  roof  of  the  building,  and  by  a  waste 
pipe  which  ran  through  the  wall  of  the  building,  and 
connected  with  a  sewer  in  the  alley  outside,  and  the 
ranee  and  its  attachments  were  necessary  for  cookino-; 
that  the  tanks  and  filters  were  attached  to  the  building 
by  a  system  of  pipes  which  connected  them  with  the 
main,  or  pipes  of  the  City  Water  Company,  and  with 
various  parts  of  the  hotel,  and  were  necessary  to  sup- 
ply the  hotel  with  clear  water;  that  the  mosquito  tran- 
soms and  window  screens  were  fitted  to  the  windows 
and  transoms  of  the  hotel — each  window  and  transom 
frame  being  fitted  to  its  particular  window,  and  shoyed 
up  and  down  in  it  on  grooves,  and  all  of  them  were 
necessary  to  the  hotel,  as  its  windows,  its  blinds  and 
shutters.  All  of  the  articles  were,  therefore,  essential 
to  the  us('  and  enjoym(;nt  of  the  hotel;  in  fact,  as  the 
plaintiff  testified,  'it  would  not  have  been  a  hotel  with- 
out them.'  'rh(;\-  were,  therefore,  fixtures  which  passed 
b)'  the  (\rcx\  of  grant  Lo  the  (h^fcMulants,  unless  they 
were  specialK  rescTved  1)\-  the  dec:d.  But  the  deed 
reser\-ed  none  of  the  articles.  It  was  made,  according 
to  its  recitals,  in  ];ursuance  of  the;  agreement  of  the 
I  5th  of  ( )ctober,  and  subject  to  the  terms,  conditions 
and  reservations  therein  contained  and  expressed. 


FIX'll'KKS.  §  622 

"As  already  stated,  the  agreement  reserved  only  the 
furniture,  pictures  and  carpets  of  the  upper  rooms  of 
the  building,  and  none  of  the  'permanent  fixtures  or 
appurtenances  to  the  property.'  In  the  absence  from 
the  deed  of  any  special  reservation  of  the  articles,  it 
must  l;)e  presumed  that  the  parties,  by  their  agreement, 
considered  them  as  permanent  fixtures  and  appurte- 
nances of  the  hotel,  which  were  to  pass  by  the  deed;  it 
is  a  well-settled  rule  of  law  that  parties  themselves  may, 
by  express  agreement,  fix  upon  chattels  annexed  to 
realty  whatever  character  they  may  have  agreed  upon. 
Property  which  the  law  regards  as  fixtures  may  be  by 
them  considered  as  personalty,  and  that  which  is  con- 
sidered in  law  as  personalty  they  may  regard  as  a  fix- 
ture. Whatever  may  be  their  agreement,  courts  will  en- 
force it.  {Smith  vs.  Waggoner,  50  Wise.  ij§;  Hunt  vs. 
Bay  State  Iron  Co.,  gy  Mass.  2'jg;  Ford  vs.  Cobb,  20 
N.  Y.  J44;  Tifft  vs.  Horton,  ^j  Id.  jyy;  Ford  vs.  Wil 
Hams,  24  N.  Y.  j^g;  Smith  vs.  Benson,  i  Hill,  lyS; 
Menagh  vs.  Whitivell,  ^^2  N'.  Y.  146.) 

"  vSo  the  plaintiff,  when  he  contracted  to  sell  the  hotel 
property  with  its  appurtenances  and  improvements, 
reserving  from  the  sale  only  the  carpets,  furniture  and 
pictures  of  the  upper  rooms  of  the  building,  fixed  upon 
all  the  chattels  which  he  had  annexed  to  the  hotel,  and 
which  were  necessary  to  its  use  and  enjoyment,  the 
character  of  appurtenances  and  improvements  of  the 
hotel.  None  of  them  by  any  possibility  of  construction 
could  fall  within  the  reservation  of  'furniture,  carpets, 
or  fixtures  in  the  upper  rooms  of  the  hotel.'  The 
plaintiff,  therefore,  sold  the  articles  in  question  as  fix- 
tures with  the  hotel,  and  as  such  they  passed  by  his 
subsequent  deed  of  the  premises  to  the  defendants." 
{Fratt  vs.   Whittier,  58  Cal.  126.) 


CHAPTER  XXI. 


SUITS      AGAINST      SHERIFFS. 


§  623.  Limitation  of  Actions  against  Officers. 

§  624.  Same  Limitations  as  to  Sureties. 

§  625.  When  Statute  Commences  to  Run. 

§  626.  Illegal  Levy. 

§  627.  When  Previous  Demand  Not  Necessary. 

§  628.  When  Demand  Necessary. 

§  629.  Justification  for  Seizure. 

§  630.  Duress  of  (xoods. 

§  631.  Liability  of  Officer  and  Sureties  for  Trespass. 

§  632.  Measure  of  Damages  for  Detaining  Personal  Property. 

§  633.  Seizure  of  Mortgaged  Personal  Property — Damages. 

§  634.  When  Replevin  Will  Not  Lie. 

§  635.  When  Judgments  Cannot  Be  Set  Oft". 

§  636.  Joinder  of  Sureties. 

§  637.  Liability  of  Sheriff's  Sureties. 

§  638.  .Sheriff's  Notice  to  Sureties. 

§  639.  Defect  in  Sheriff's  Bond — No  Defense. 

§  640.  Bond  to  Indemnify  Sheriff  for  Unlawful  Act. 

^641.  Agreement  to  Indemnify  .Sheriff. 

§  642.  Liability  of  Sureties  on  Indemnity  Bonds. 

§  643.  Alteration  of  Bond. 

§  644.  Conditions  of  Intleinnity  Bond. 

^  645.  Actions  upon  Indemnity  Bonds. 

§  646.  Plaintiff  Boiuid  by  His  Bond. 

^  647.  Judgment  against  .Sherift. 

§  648.  An  Estoppel  That  Protects  the  .Sheriff. 

{J  649.  indemnity  Bond — ^Jurisdiction  of  Courts. 

^  650.  Penalty  for  Not  Paying  over  Moneys. 


4 


§  651 
§  652 
§  653 
§  65+ 
§  655 
§  656, 


SUITS  A(;Aii\sr   sheriffs.  ^  623 

Remedy  by  Motion. 

Liability  tor  Acts  of  Deputy. 

Officer  Not  Responsible  through  Laches  of  Another. 

Release  of  Sheriff  by  Stipulation. 

Offices  of  Sheriff  and  Tax  Collector  Separate. 

Principal  and  Deputy — Levy  of  Separate  Writs. 


§  623.    Limitation  of  Actions  against  Officers. 

— Under  the  practice  in  California  an  action  cannot  be 
commenced  after  two  years  against  a  sheriff,  coroner  or 
constable,  upon  a  liability  incurred  by  the  doing  of  an 
act  in  his  official  capacity,  and  in  virtue  of  his  office,  or 
by  the  omission  of  an  official  duty,  including  the  non- 
payment of  money  collected  upon  an  execution.  [Sec. 
jjg  Code  Civil  Procedure.^  An  action  cannot  be  com- 
menced after  the  lapse  of  one  year,  against  a  sheriff  or 
other  officer  for  the  escape  of  a  prisoner  arrested  or 
imprisoned  on  civil  process.  {Sec.  j^o  Code  Civil  Pi^o- 
cedztre.)  An  action  cannot  be  maintained,  unless  com- 
menced within  six  months,  against  an  officer,  or  officer 
de  facto,  to  recover  any  goods,  wares,  merchandise  or 
other  property,  seized  by  any  such  officer  in  his  official 
capacity  as  tax  collector,  or  to  recover  the  price  or 
value  of  any  goods,  wares,  merchandise  or  other  per- 
sonal property  so  seized,  or  for  damages  for  the  seizure, 
detention,  sale  of,  or  injury  to  any  goods,  wares,  mer- 
chandise, or  other  personal  property  seized,  or  for 
damages  done  to  any  person  or  property  in  making 
any  such  seizure.  [Sec.  j^i  Code  Civil  Procedure.)) 
Compare : 

Arizona.     Sec.  2ji6  Revised  S la  lutes,  iSSj. 

Nevada.     Sec.  ^^44  General  Statutes,  188^, 

Oregon.     Sees.  7,  g  I  Hills  Codes,  i8g2. 

Washington.     Sec.  115  II  Hills  Codes,  i8gi. 


-D 


§§  624-626  SUITS    AGAINST    SHERIFFS. 

^  624.    Same  Limitations  as  to  Sureties.— It  is 

also  held  that  it  was  not  the  intention  to  allow  a  longer 
period  for  commencing  an  action  against  a  sheriff  and 
his  sureties  "for  a  liability  incurred  by  doing  an  act  in 
his  official  capacity,"  than  is  allowed  for  commencing 
an  action  against  him  alone  for  it.  {Paige  vs.  Carroll, 
61  Cal.  2 IT.) 

§  625.    When  Statute  Commences  to  Run. — In 

an  action,  brought  against  a  public  officer  for  money 
alleged  to  have  been  received  by  him  in  his  official 
capacity  but  for  which  he  failed  to  account,  the  statute 
of  limitations  commences  upon  the  default  of  the  officer 
to  pay  over  the  money  according  to  law,  and  not  from 
the  time  of  the  demand  made  for  it.  {People  ex  r^/. 
Dunn  vs.  Melone,  /j  Cal.  S74-) 

The  statute  of  limitations  for  breach  of  an  official 
bond  does  not  commence  running  until  the  expiration 
of  the  official  term.     {People  vs.  Van  Ness,  yg  Cal.  84.) 

When  a  sheriff  is  ex  officio  tax  collector,  the  statute 
prescribing  limitation  of  actions  against  a  sheriff  does 
not  apply  to  an  action  upon  his  bond  as  tax  collector. 
{People  vs.  Burkhardt,  jS  Cal.  606.) 

The  Supreme  Court  of  Colorado  {In  re  People  to 
Use  of  Fritch  vs.  Cramer  et  al.,  Pacific  Reporter,  Vol. 
^5,  p.  J02)  decides  that  the  liability  of  sheriffs  for  the 
omission  of  any  official  duty,  except  for  escapes,  accrues 
when  tht  alleged  consequential  injury  was  suffered,  and 
not  when  tlv  allcg(;d  non-feasance  occurred. 

§  626.  Illegal  Levy. —  If  the  sheriff  levies  upon 
lh<-  |jrop(Tty  of  a  person  not  a  party  to  the  execution, 
he  is  res|)()nsil)lc  in  an  action  at  law.  He  has  become 
a  trespasser,  as  against   the  rights  of  the  owner  of  the 


SUITS    AGAINST    SHERIFFS.  §  627 

property.  The  statute  allows  him  to  try  the  rights  of 
property  or  the  protection  of  an  indemnity  bond.  The 
procedure  in  such  cases  has  been  pointed  out  elsewhere 
in  this  volume.  If  he  cannot  safely  hold  the  property, 
he  is  entitled  to  indemnity  from  the  plaintiff.  If  the 
sheriff  take  property  not  belonging  to  the  defendant  in 
the  writ,  whether  in  his  possession  or  not,  the  taking  is 
tortuous. 

§  627.  When  Previous  Demand  Not  Neces- 
sary.— If  the  original  possession  of  property  is  ac- 
quired by  a  tort,  no  demand  previous  to  the  institution 
of  a  suit  is  necessary.  {Sa^'gent  vs.  Sturm,  2^  Cal. 
S5g,  affirmed  in  IVellman  vs.  English,  j8  Cal.  584. 
See  also  Bouhvare  vs.  Craddock  jo  Cal.  rgo,  which 
overrules  all  cases  subsequent  to  and  in  conflict  with 
Ledley  vs.  Hays,  i  Cal.  160,  on  this  point.)  In  the 
case  of  Paige  vs.  O'Neal,  12  Cal.  483,  the  court  say: 

"It  was  not  essential  to  aver  a  demand  of  the  de- 
fendant of  the  wheat  in  controversy  in  the  complaint, 
or  to  prove  a  demand  on  the  trial.  If  the  property  in 
fact  belonged  to  the  plaintiff — and  it  is  upon  this  theory 
the  suit  is  brought,  and  to  this  effect  the  evidence 
tended  when  the  plaintiff  rested — the  seizure  by  the 
defendant  was  tortuous;  and  it  is  a  general  rule  that 
where  the  possession  of  property  is  originally  acquired 
by  a  tort,  no  demand  previous  to  the  institution  of  a 
suit  for  its  recovery  is  necessary.  It  is  only  when  the 
original  possession  is  lawful,  and  the  action  relies  upon 
the  unlawful  detention,  that  a  demand  is  required." 

In  the  case  of  Woodworth  vs.  Knowlton,  22  Cal. 
169,  the  court  say:  "The  evidence  and  pleadings  show- 
clearly  that  the  plaintiff  was  the  owner  of  the  property, 
and  in  possession  at  the  time  of  the  levy  of  the  attach- 


§627  SUITS    AGAINST    SHERIFFS. 

ment,  and  we  see  nothing  in  the  evidence  showing  a 
right  of  possession  in  any  person  other  than  the  plain- 
tiff at  the  time  of  the  commencement  of  the  suit.  The 
attachment  gave  the  defendant  no  authority  to  take  the 
property  owned  by  the  plaintiff,  and  his  seizure  of  the 
property  was  therefore  wrongful  and  unlawful.  If  any 
demand  whatever  was  necessary  in  this  case,  which  is 
not  very  clear,  it  was  sufficient  to  make  that  demand  of 
the  party  in  actual  possession,  and  who  was  able  to 
comply  with  it,  and  it  would  have  been  but  an  idle  cere- 
mony to  make  the  demand  of  Atherton  or  Griffin,  who 
could  not  have  complied  with  it  had  they  been  willing 
to  do  so." 

If  a  sheriff,  by  virtue  of  an  execution,  seizes  the 
property  of  a  person  other  than  the  judgment  debtor, 
whether  by  mistake  or  design,  it  is  not  necessary  for 
the  owner  of  the  property  thus  seized  to  make  a  de- 
mand on  the  sheriff  before  commencing  suit.  {Boul- 
luai^e  vs.  Craddock,  jo  Cal.  igo.)  The  sheriff  having 
misapplied  his  process,  stands  in  the  position  of  every 
other  trespasser,  and  is  liable  to  an  action  the  instant 
the  trespass  is  committed.  The  circumstance,  that  the 
property  may  have  been  in  the  possession  of  the  exe- 
cution debtor  at  the  date  of  the  seizure,  amounts  to 
nothing  except  upon  proof  of  fraud  or  commixture.  In 
the  case  above  cited,  the  court  say:  "The  rule  of  the 
common  law  is  correctly  stated  in  Ledley  vs.  Hays,  i 
Cal.  160,  and  the  correctness  of  that  decision  is  impli- 
edly recognized  in  Daumiel  vs.  Gorham,  6  Cal.  44. 
rh(-  statement  of  facts  in  Taylor  vs.  Seymour,  6  Cal. 
512,  is  imperfect;  but  if  that  case  is  to  be  understood 
as  laying  down  a  different  rule,  then  we  prefer  to  follow 
I  ,(tdley  vs.   \  lays." 


SUITS  a(;ainst  sheriffs.  §  628 

§  628.    When  Demand  Necessary.— In  the  case 

■of  Kelley  z'i-.  Scannell,  12  Cal.  j 2>y  the  Supreme  Court 
held  that  notice  of  claim  and  demand  for  the  property 
was  necessary  on  the  part  of  the  claimant.  This  was 
an  action  to  recover  the  possession  or  the  value  of  cer- 
tain personal  property,  comprising  the  furniture,  fix- 
tures and  stock  of  the  "Empire  State  Saloon."  The 
property  was,  on  the  19th  of  February,  1857,  seized  by 
the  defendant  as  sheriff  of  San  Francisco  County,  un- 
der an  attachment  against  one  Wilson.  Prior  to  the 
seizure  of  the  property  by  the  defendant,  the  plaintift, 
by  an  instrument  in  writing,  bargained  and  sold  the 
property  to  Wilson,  and,  by  the  terms  of  the  agree- 
ment, the  property  was  to  be  delivered  and  paid  for  on 
the  14th  of  February,  1857.  On  that  day  Wilson  paid 
a  part  of  the  purchase  money,  and  the  time  for  the  pay- 
ment of  the  balance  was  extended  to  February  24.  On 
the  14th  of  February,  Wilson  and  one  Kirk  were  in 
possession  of  the  property,  and  appear  to  have  been 
the  proprietors  of  the  saloon.  This  possession  contin- 
ued up  to  the  time  of  the  seizure  of  the  property  by 
the  defendant  as  sheriff.  The  plaintiff's  complaint  con- 
tains no  allegation,  nor  was  there  any  proof  on  his  part, 
of  notice  of  his  claim  or  demand  of  the  property,  prior 
to  the  bringing  of  this  action.  Plaintiff  had  judgment 
in  the  4th  District  Court,  and  the  Supreme  Court 
granted  a  new  trial,  holding  that  "defendant  having 
seized  the  property  by  virtue  of  his  office  and  process, 
while  in  the  possession  of  the  party  defendant  men- 
tioned in  the  writ,  was  entitled  to  notice  and  demand 
from  plaintiff  before  he  can  be  held  liable  to  an  action 
for  the  possession  or  value." 

Where,  at  the  time  of  the  levy  of  a  second  execution 
'.(the  first  having  been  quashed),  the  goods  first  levied 


§  629  SUITS    AGAINST    SHERIFFS. 

upon  had  passed  by  sale  to  a  third  party,  and  were 
mixed  with  other  goods  subsequently  purchased,  which 
last  goods  were  alleged  to  be  liable  to  the  execution,  it 
was  held,  in  the  case  of  Wellington  vs.  Sedgwick,  1 2 
Cal.  470,  that  if  they  were  so  mixed  or  confounded  with 
other  goods  as  that  they  could  not  be  identified  or  dis- 
tinguished, and  Wellington  failed  to  point  out  to  the 
sheriff  or  designate  the  goods  which  were  not  subject 
to  execution,  the  sheriff  could  not  be  liable  for  levying 
on  the  whole.  But  the  sheriff  would  be  bound,  after 
the  levy,  on  notice  to  him  of  the  goods  not  liable,  to 
restore  them;  but  this  notice  must  be  specific,  apprising 
him  of,  and  designating,  the  particular  goods  improp- 
erly seized,  and  must  be  given  previously  to  suit 
brought. 

§  629.    Justification  for  Seizure. — An  officer,  in 

order  to  justify  the  seizure  of  property  in  the  posses- 
sion of  a  stranger  to  the  writ  which  he  has  executed, 
must  plead  specially  such  justification.  He  cannot  jus- 
tifv  under  a  oreneral  denial  of  the  allegations  of  the  com- 
plaint. 

The  general  denial  only  puts  in  issue  the  allegations 
of  the  complaint.  New  matter  must  be  specially 
pleaded,  and  new  matter  is  that  which  the  defendant 
must  affirmatively  establish.      {Glazer  vs.  Clift,  10  Cal. 

304-) 

Where,   in   an   action   against    the  sheriff  for  taking 

goods,  he  justifies  under  an  attachment  against  a  third 
person,  it  is  not  necessary  that  his  answer  should  set 
forth  miiuiK'ly  every  fact  relating  to  the  attachment 
suit.-  An  answer  which  stated  the  time  of  commence- 
ment of  th','  action,  the  names  of  parties,  the  court,  and 
that  th'-  Lfonds  were  taken  bv  virtue  of  a  writ  of  attach- 


SUITS    AGAINST    SHERIFFS.  §  629 

ment  issued  therein,  held  to  be  sufficient.  {Toivdy  vs. 
Ellis,  22  Cal.  6^1.) 

When  property  is  taken  from  the  possession  of  the 
defendant  by  the  officer  levying  thereon,  it  is  sufficient 
to  introduce  (in  suit  against  the  sheriff),  in  evidence, 
the  attachment  or  execution  under  which  the  levy  is 
made;  but  when  found  in  the  possession  of  a  stranger 
claiming  title  to  the  property  so  seized,  it  is  likewise 
necessary  to  show  a  judgment,  or  prove  the  debt  for 
which  judgment  is  demanded  in  the  attachment  suit. 
{Sexey  vs.  Adkinson,  J4  Cal.  J46.) 

If  an  officer  seizes  the  property  of  the  debtor,  and 
the  writ  be  regular  on  its  face,  it  is  a  sufficient  justifica- 
tion to  him;  for  the  defendant  may,  if  the  attachment 
has  been  improvidently  issued,  move  to  have  it  quashed 
or  bring  a  suit  upon  the  undertaking;  but  a  third  party, 
a  stranger  to  the  record,  could  not  interfere,  and, 
therefore,  it  would  seem  but  justice,  before  any  right 
could  be  established  against  him,  by  reason  of  a  pro- 
ceeding to  which  he  was  not  a  party,  that  its  regularity 
should  be  shown.  An  officer  who  seizes  property  in 
the  hands  of  the  debtor,  may  justify  under  the  execu- 
tion or  process;  but  when  he  takes  property  from  a 
third  person,  who  claims  to  be  the  owner  thereof,  he 
must  show  the  judgment  and  execution;  if  an  attach- 
ment, the  writ  of  attachment  and  the  proceedings  on 
which  it  was  based. 

In  the  case  of  Norcross  vs.  Nunan,  sheriff  (<5/  Cal. 
640),  which  was  an  action  for  the  recovery  of  personal 
property  or  its  value,  and  for  damages  for  its  detention, 
the  court  below  refused  to  admit  the  writ  of  attachment 
in  evidence.  On  appeal  Mr.  Justice  Myrick  delivered 
the  following  opinion  of  the  court : — 

"This  was  an  action  for  the  recovery  of   personal 


§  629  SUITS    AGAINST    SI  IICRIFFS, 

property  or  its  value,  and  for  damages  for  its  detention. 
But  the  plaintiff  did  not  claim  the  delivery  of  the  prop- 
erty to  him  before  judgment.  The  defendant,  sheriff, 
justified  under  a  writ  of  attachment  and  an  execution, 
"i.  Conceding  that  the  court  below  was  correct  in 
refusing  to  admit  the  writ  of  attachment  in  evidence 
because  of  the  defect  of  the  affidavit,  in  stating  that  the 
amount  claimed  was  due  upon  either  an  express  or  im- 
plied contract,  yet  the  defendant  was  entitled  to  have 
the  execution  in  evidence  upon  which  to  base  the  de- 
fense that  the  transfer  of  the  property  from  Gordon  & 
Cory  to  plaintiff  was  fraudulent  and  void  as  to  credit- 
ors. We  think  the  evidence  of  the  plaintiff  clearly 
shows  that  the  transfer  was  void  as  to  creditors.  {Sec. 
3440  Civil  Code.)  The  sheriff  did  not  take  the  prop- 
erty from  the  possession  of  plaintiff;  and  even  if  there 
were  irregularities  in  the  proceedings  for  the  judgment, 
such  irregularities  would  not  prevent  the  officer  from 
justifying  under  an  execution  valid  on  its  face.  There 
is  nothing  on  the  face  of  the  execution  to  show  its  in- 
validity. The  rule  is  fully  stated  in  Freeman  on  Exe- 
cutions, Sec.  loi. 

"  'The  sheriff  may  limit  his  inquiries  to  an  inspection 
of  the  writ.  If  the  writ  is  issued  by  the  proper  officer, 
in  due  form,  and  appears  to  proceed  from  a  court  com- 
petent to  exercise  jurisdiction  over  the  subject  matter  of 
the  suit,  to  grant  the  relief  granted  and  enforce  it  by 
th<'  writ  issued,  and  there  is  nothin(r  on  the  face  of  the 
writ  showing  a  want  of  jurisdiction  over  the  person  of 
the  defendant,  or  showing  the  writ  to  be  clearly  illegal 
from  some  other  cause,  the  officer  may  safely  proceed. 
That  from  some  cause  iiol  shown  in  the  writ,  the  judg- 
ment or  writ  was  irregular  or  void,  will  be  of  no  conse- 
riuence   to  him.      I  le  can    justify   upon    producing  the 


SUITS    AGAINST    SHERIFFS.  §§630,631 

writ.  It  is  therefore  immaterial  to  him  that  the  judg- 
ment does  not  correspond  to  the  writ  or  that  there  ever 
was  any  such  judgment  in  existence.' 

"Judgment  and  order  reversed  and  cause  remanded 
for  a  new  trial." 

A  sheriff  makes  out  a  prima-facie  case  of  justification 
of  the  seizure  of  property  under  a  writ  of  attachment, 
by  the  production  of  the  writ  and  affidavit  on  which  it 
was  issued,  notwithstanding  the  affidavit  was  originally 
insufficient,  and  was  amended  subsequent  to  the  seizure, 
if  the  property  was  in  possession  of  the  defendant  and 
attached  as  his  property.  {Babe  vs.  Coyne,  jj  Cal. 
261.) 

§  630.  Duress  of  Goods. — The  issuance  of  an  at- 
tachment and  levy  of  the  same  on  goods,  if  there  be 
a  legal  cause  of  action  existing,  is  not  such  a  duress  of 
o-oods  as  to  orive  a  cause  of  action  for  damao-es  in  favor 
of  the  one  whose  goods  are  seized.  {Ko/iler  vs.  JVells, 
Fargo  &  Co.,  26  Cal.  606.)  Proof  of  injury  to  plain- 
tiff's business  as  a  criterion  of  damages  is  inadmissible. 

§  631.    Liability  of  Officer  and  Sureties  for 

Trespass. — -Where  a  sheriff  or  constable  seizes  the 
property  of  one  man  under  an  execution  against  an- 
other, he  is  a  trespasser,  and  liable  on  his  official  bond. 
{Van  Pelt  vs.  Littler,  14  Cal.  ig4.)  An  action  on  the 
official  bond  of  an  officer  lies  primarily  upon  the  breach 
of  the  condition  of  the  bond,  whether  the  injury  for 
which  suit  is  brought  be  a  trespass  or  not — ^the  result 
of  the  non-feasance  or  mis-feasance  of  the  officer.  In 
the  decision  here  cited  the  suit  was  brought  upon  the 
official  bond  of  a  constable,  against  the  officer  and  his 
sureties,  to  recover  damaQ^es  for  an  illecral  seizure  of 


§  631  SUITS    AGAINST    SHERIFFS. 

the  property  of  the  plaintiff,  under  an  execution  against 
other  parties.  It  was  contended  that  the  suit  was  im- 
properly brought  upon  the  official  bond  of  the  constable; 
that  the  sureties  are  not  liable  on  the  bond  in  the  first 
instance,  and  that  the  only  remedy  primarily  is  an  action 
of  trespass  against  the  officer  alone.  The  condition  of 
the  bond  being  that  the  officer  shall  well  and  faithfully 
discharore  the  duties  of  his  office,  it  was  held  that  there 
could  be  nothing  in  that  point.  The  bond  is  a  contract 
by  which  the  officer  and  his  sureties,  in  effect,  covenant 
and  agree,  not  only  that  the  officer  will  faithfully  per- 
form the  duties  enjoined  by  law,  but  that  he  will  not, 
by  virtue  or  under  color  of  his  office,  commit  any  ille- 
gal or  improper  act.  It  is  no  answer  to  an  action  upon 
the  official  bond  of  an  officer,  that  the  party  complain- 
ing has  not  chosen  to  pursue  some  other  equally  avail- 
able and  prpper  remedy. 

The  law  is  well  settled  that  a  sheriff  is  answerable 
for  the  wrongful  acts  of  his  deputy,  committed  under 
color  of  his  office,  and  in  the  pretended  discharge  of 
his  duty.  If  the  deputy  levy  an  execution  against  A 
upon  the  property  of  B,  the  sheriff  is  liable;  and  he 
is  liable  not  only  in  a  private  and  individual  capacity, 
but  in  his  public  and  official  character,  and  upon  his 
official  bond.  This  liability  rests  alone  upon  the 
ground  of  the  official  relation  existing  between  the 
parties,  and  can  be  enforced  only  as  to  such  acts  of 
the  deputy  as  are  connected  with  the  performance  of 
his  official  duty.  He  is  no  more  answerable  for  a 
naked  trespass  committed  by  the  deputy  than  any 
other  person,  biii  the;  wrongful  acts  of  the  deputy, 
done  under  color  of  process,  are  deemed  official,  and 
for  such  acts  he  is  liable.  This  being  admitted,  and 
its  correctness  seems  never  to  have  been  questioned, 


SUITS    AGAINST    SHERIFFS.  §  63  1 

it  is  difficult  to  perceive  any  satisfactory  reason  why 
similar  acts  of  the  sheriff  himself  should  not  be  held  of 
the  same  character,  in  order  to  charge  his  sureties. 
Our  statute  makes  no  distinction  between  the  liability 
of  a  sheriff  and  a  constable.  The  Legislature  intended 
that  the  officer  and  his  sureties  should  be  responsible 
for  every  abuse  of  his  official  powers,  and  there  could 
not  well  be  a  more  flagrant  abuse  of  such  powers  than 
the  seizing  and  selling  of  the  property  of  one  person 
under  and  by  virtue  of  an  execution  against  another. 
He  does  not  act  in  such  a  case  in  a  private  and  indi- 
vidual capacity,  but  as  an  officer,  clothed  with  official 
authority,  and  protected  by  the  judgment  of  a  court 
and  the  process  which  he  intends  to  execute.  No  re- 
sistance can  lawfully  be  made  by  any  person  whose 
property  is  thus  taken.  The  property  itself  may  be 
detained  whether  legally  taken  or  not,  and  a  summary 
mode  is  provided  for  the  protection  of  the  officer,  to 
determine  disputes  in  regard  to  the  title.  "To  hold 
that  such  an  act  is  not  official,"  say  the  court  in  the 
case  above  cited,  "at  least  so  far  as  to  charge  the  sure- 
ties, it  appears  to  us,  would  be  in  contravention  of  the 
spirit  and  intention  of  the  statute,  and  would  certainly 
operate  most  unjustly  upon  persons  whose  property 
may  be  taken  by  an  officer  who  is  insolvent  and  unable 
to  respond  in  damages  for  its  value." 

In  a  suit  brought  on  the  official  bond  of  defendant, 
Webster,  who  was  sheriff  of  San  Joaquin  County, 
against  Webster  and  his  sureties,  to  recover  damages 
for  the  levy  by  Webster  on  property  of  one  Pico,  which 
levy  was  made  under  color  of  process,  it  was  held 
{Pico  vs.  Webster,  14  Cal.  2oj)  that,  where  the  surety 
undertakes  that  his  principal  shall  pay  any  judgment 
to  be  rendered,  etc.,  the  judgment  against  the  principal 
is  conclusive  against  the  surety. 


■^  63:  SUITS    AGAINST    SHERIFFS. 

But,  in  the  case  of  official  bonds,  the  sureties  under- 
take in  general  terms  that  the  principal  will  perform  his 
official  duties;  and  a  judgment  against  the  officer,  in  a 
suit  to  which  they  were  not  parties,  is  not  evidence 
against  them. 

§  632.    Measure  of   Damages  for   Detaining 

Personal  Property. —  In  actions  for  taking  and  de- 
taining personal  property,  no  circumstances  of  aggra- 
vation being  shown,  the  measure  of  damages  is  the 
value  of  the  property,  with  interest.  If  circumstances 
of  aCTorravation  be  shown  in  order  to  increase  the  dam- 
ages,  then  defendant  may  show  all  circumstances  con- 
nected with  his  acts  and  explanatory  of  his  motives 
and  intentions.  In  such  actions  the  rule  of  damages 
depends  on  the  presence  or  absence  of  circumstances 
of  aggravation  in  the  trespass,  as  fraud,  malice  or 
oppression.  In  the  absence  of  such  circumstances,  the 
rule  is  compensation  merely,  and  this  refers  solely  to 
the  injury  done  to  the  property,  and  not  to  collateral  or 
consequential  damages  resulting  to  the  owner.  And  the 
measure  of  relief  is  matter  of  law.  But  where  the 
trespass  is  committed  from  wanton  or  malicious  mo- 
tives, or  a  reckless  disregard  of  the  rights  of  others,  or 
under  circumstances  of  great  hardship  and  oppression, 
the  rule  of  mere  compensation  is  not  enforced,  and  the 
measure  and  amount  of  damages  are  matters  for  the 
jury  alone,  and  they  may  award  punitive  or  exemplary 
damages. 

The  rule  of  compensation  merely,  as  distinguished 
from  the  rule  of  exemplary  damages,  applies,  even 
though  the  uril  iiiulcr  which  the*  officer  committed  the 
trespass  was  void— there  being  no  circumstances  of 
aggravation.      {Porsey  vs.  Manlovc,  14  Cal.  55j.) 


SUITS    AGAINST    SHERIFFS.  I  ^3~ 

In  an  action  against  a  sheriff  for  wrongfully  seizing 
and  selling  property  under  an  execution,  and  where  there 
was  no  wantonness  or  oppression  on  the  part  of  such 
officer  in  the  seizure,  the  measure  of  damagfes  is  the 
value  of  the  property  at  the  time  it  was  seized,  and  legal 
interest  on  such  amount  from  the  time  of  seizure  up  to 
the  time  of  the  rendition  of  the  verdict.  {Phelps  vs. 
Owens y  II  Cal.  2^.) 

The  rule  giving  vindictive  or  exemplary  damages  in 
cases  of  malicious  trespass,  applies  as  well  to  officers 
of  the  law,  acting  under  color  of  process,  as  to  private 
persons.  In  a  suit  against  a  sheriff  and  the  plaintiff 
in  a  judgment,  for  a  wrongful  seizure  of  property  on  an 
execution  upon  such  judgment,  the  sheriff  who  acted 
without  improper  motives  cannot  be  made  liable  in 
vindictive  or  exemplary  damages  on  account  of  the 
malicious  motives  of  the  plaintiff  in  the  writ.  The  mo- 
tives of  plaintiff  cannot  be  given  in  evidence  in  aggra- 
vation of  damages  against  the  sheriff.  {Nightingale  vs. 
Scannell,  18  Cal.  31 S-) 

In  the  case  of  Selden  vs.  Cashman,  20  Cal.  67,  action 
for  damages  for  trespass,  for  the  seizure  of  a  stock  of 
goods  under  an  execution  issued  upon  a  void  judg- 
ment, the  court  held  that  the  fact  of  the  invalidity 
of  the  judgment  was  not  sufficient  to  warrant  the  con- 
clusion that  the  seizure  was  malicious.  There  was 
nothing  extraordinary  attending  the  seizure,  and  the 
course  ordinarily  adopted  in  such  cases  seems  to  have 
been  substantially  pursued.  The  seizure  was  undoubt- 
edly a  hardship  upon  the  plaintiff,  but  there  was  no  evi- 
dence of  any  wrongful  design  or  willful  misconduct 
tending  to  aggravate  the  offense.  The  case  presented 
was  that  of  a  simple  trespass,  and  the  court  below  acted 
properly  in  refusing  to  allow  exemplary  damages. 


§  632  SUITS    AGAINST    SHERIFFS. 

To  maintain  trover  or  trespass  de  bonis  asportatis, 
evidence  of  an  actual  forcible  dispossession  of  the 
plaintiff  is  not  necessary.  Any  unlawful  interference 
with  the  property,  or  exercise  of  dominion  over  it,  by 
which  the  owner  is  damnified,  is  sufficient  to  maintain 
either  action.  It  was  held,  accordingly,  in  Rider  vs. 
Edgar,  54  Cal.  127,  in  an  action  by  a  mortgagee  of 
personal  property  against  a  sheriff,  for  taking  the  same 
under  attachments  against  the  mortgagor,  that  a  levy 
upon  a  part  of  the  property  in  the  possession  of  the 
mortgagor,  and  the  appointment  of  a  keeper,  was  a 
taking,  although  the  property  was  not  moved  or  other- 
wise disturbed,  and  though  it  was  released  before  any 
demand  from  the  plaintiff. 

In  an  action  for  trespass  [Pacheco  vs.  Hunsacker,  14 
Cal.  120),  brought  by  one  Pacheco  against  Hunsacker, 
as  sheriff,  for  seizing  and  taking  away  certain  grain,  the 
property  of  plaintiff,  the  defendant  admitted  the  seizure, 
averring  that  it  was  done  by  virtue  of  a  writ  of  attach- 
ment issued  at  the  suit  of  Dutil  vs.  Andeque;  that  he 
sold  the  undivided  two-thirds  interest  in  the  wheat,  as 
perishable  property,  for  $495;  that,  at  the  time  of  the 
seizure,  Andeque  had  a  leviable  interest  in  the  wheat,  and 
that  I  )util  was  a  bona-fide  creditor.  The  wheat  was  in 
five  stacks,  and  was  left  by  the  sheriff"  in  charge  of  a 
keeper  until  the  day  of  sale.  At  the  sale  the  sheriff 
announced  that  he  only  sold  the  undivided  two-thirds 
interest  of  Andeque.  Pacheco  was  jjresent  and  notified 
the  sheriff  that,  if  he  sold,  he,  Pacheco,  would  abandon 
his  one-third  and  claim  of  the  sheriff  the  whole  value. 
The  purchaser  at  the  sale  afterwards  went  onto  the 
land,  thn.'sh(*d  out  the  whole  of  the  five  stacks,  and  kept 
the  wheat.  The  sheriff  retained  the  $495,  to  abide  the 
e\ciU  of  this  suit.      A  few  days  before  the  seizure  by 


SUITS  A(;ainst  sherii-f.s.  §  632 

the  sheriff,  Andeque  sold  to  Pacheco  these  five  stacks, 
pointing  them  out  specifically,  executed  a  bill  of  sale, 
left  the  ranch,  and  did  not  return. 

The  court  below,  among  other  things,  instructed  the 
jury  that  the  plaintiff  was  entitled  to  recover,  if  at  all, 
the  value  of  all  the  grain  taken.  The  jury  found  for 
plaintiff  $1,457.  Judgment  was  rendered  accordingly, 
and  defendant  appealed.  The  Supreme  Court  held 
that  the  plaintiff  was  entitled  to  the  value  of  all  the 
grain  taken. 

In  an  action  to  recover  the  possession  of  personal 
property,  with  damages  for  its  detention,  the  judgment 
may  be  for  more  than  the  value  as  alleged  in  the  com- 
plaint, if  it  be  within  the  ad  damnum  of  the  writ.  The 
value  of  the  property  is  only  one  predicate  of  the  re- 
covery. {Coghill  vs.  Boring,  i^  Cal.  2/j.)  The  rule 
is,  where  the  property  converted  has  a  fixed  value,  the 
measure  of  damages  is  that  value,  with  legal  interest 
from  the  time  of  conversion.  When  the  value  is  fluc- 
tuating, the  plaintiff  may  recover  the  highest  market 
value  at  the  time  of  the  conversion,  or  at  any  time 
afterwards,      {^Hamer  vs.  Hathaway,  jj  Cal.  iiy. ) 

An  officer  holding  goods  under  a  writ  of  attachment 
is  liable  on  his  bond  for  any  damage  thereto  occurring 
through  his  carelessness  or  negligence.  ( Wilkowski 
vs.  Hern,  82  Cal.  60^.) 

In  an  action  to  recover  damages  from  a  sheriff  for  a 
wrongful  seizure  of  plaintiff's  goods  under  writs  of  at- 
tachment issued  in  suits  against  his  son,  where,  on  mo- 
tion of  the  plaintiff  made  in  such  actions,  the  attached 
property  has  been  restored  by  order  of  the  court  to 
him,  exemplary  damages,  attorney's  fees  and  other  ex- 
penses attending  the  hearing  of  such  motion,  should  not 
be  awarded,  in  the  absence  of  anv  showing  of  fraud, 


§§  ^33-^35  SUITS    AGAINST    SHERIFFS. 

malice  or  oppression.  {Adajns  vs.  Gillani,  j6  Pacific 
Reporter  51,  Kansas.) 

§  633.  Seizure  of  Mortgaged  Personal  Prop- 
erty— Damages. — Under  a  statute  requiring  the  offi- 
cer to  pay  or  tender  the  amount  of  the  mortgaged  debt 
before  he  can  levy  upon  mortgaged  personal  property, 
if  the  officer  sells  and  converts  such  property  without 
such  tender,  the  mortgagee  is  entitled  to  recover  of  the 
officer  the  amount  of  the  mortgage  debt  with  interest. 
[Sherman  vs.  Finch,  7/  Cal.  68.) 

§  634.    When  Replevin  Will  Not  Lie.    When  an 

officer  has  sold  personal  property  under  execution,  and 
parted  with  possession  of  it,  the  action  of  claim  and 
delivery  will  not  lie  against  him.  [Riciotto  vs.  Clement, 
g4  Cal.  10^. 

%  635.    When  Judgments  Cannot  Be  Set  Off.— A 

sheriff  will  not  be  allowed  to  take  advantage  of  his  own 
wrong,  and  by  an  illegal  act  defeat  the  purpose  of  the 
statute.  In  the  case  of  Beckman  vs.  Manlove,  18  Cal. 
389,  plaintiff  recovered  judgment  against  defendant  for 
seizing,  as  sheriff,  under  execution,  certain  exempt 
property.  Defendant  then  procured  an  assignment  to 
him  of  th(,'  judgment  on  which  the  execution  issued, 
and  moved  the  court  to  set  off  this  latter  judgment 
against  the  former  :  Held,  that  the  motion  was  properly 
denied  ;  that  defendant,  Ixnng  sued  as  a  wrongdoer, 
the  judgment  of  plaintiff  for  the;  value  of  the  property 
must,  as  between  plaintiff  and  defendant,  be  regarded 
as  standing  in  place  of  the  property  ;  and  that  if  defend- 
ant were  allowed  in  this  way  to  take  advantage  of  his 
own  wrong,  h<-  would  practically  cU^feat  the  purpose  of 
the  exemption    law. 


i 


srirs  AOAiNsr  siii.Riiis.         ^^  636,  637 

§  636.  Joinder  of  Sureties. — The  sureties  on  the 
bond  of  a  sheriff  may  properly  be  joined  as  parties 
defendant  in  an  action  against  him  to  recover  personal 
property  wrongfully  taken  on  execution,  and  for  dam- 
ages for  its  detention.  (Satn  Yuen  vs.  McManii,  gg 
Cal.  4g7.) 

\  637.    Liability  of  Sheriff's  Sureties.— Sureties 

on  the  sheriff's  official  bond  in  this  State  are  entitled 
to  stand  upon  the  precise  terms  of  their  contract,  by 
which  they  stipulate  for  his  official,  not  his  personal, 
dealings.  In  the  case  of  Schloss  vs.  White,  sheriff,  16 
Cal.  68,  suit  brought  on  a  sheriff's  bond  against  the 
officer  and  his  sureties,  the  plaintiff  sued  out  attachment 
against  one  Kalkmann,  and  had  it  levied  on  some  goods. 
Other  creditors  issued  similar  process,  also  levied  on 
the  same  goods  ;  and  afterwards  the  plaintiff  dismissed 
his  proceeding,  and  claimed  that  the  goods  levied  on, 
or  a  part  of  them,  were  his  own  property,  they  having 
been  procured  by  Kalkmann  by  false  pretenses.  The 
plaintiff  sued  the  sheriff  in  replevin.  He  did  not  take 
the  goods  out  of  the  sheriff's  possession,  but  came  to 
an  arrangement  with  the  sheriff,  whereby  the  sheriff 
agreed  to  sell  the  goods  and  keep  the  proceeds  to 
answer  the  judgment,  if  the  plaintiff  obtained  one  in 
his  replevin  suit.  The  sheriff  sold  the  goods  and  paid 
the  money  into  court,  saying  nothing  about  this  arrange- 
ment ;  and  the  money  was  paid,  under  the  order  of  the 
court,  on  the  claim  of  the  other  creditors.  The  court 
held  as  follows :  "  The  sureties  of  the  sheriff  had  noth- 
ing to  do  with  and  gave  no  sanction  to  this  arrange- 
ment. The  question  is.  Are  they  bound  to  the  plaintiff 
for  the  goods  or  the  money  received  from  the  sale — 
the  plaintiff  having  obtained    judgment  in  the  replevin 

26 


§637  SUITS    ACAINST    SHERIFFS. 

suit?  We  think  they  are  not.  It  was  no  part  of  the 
sheriff's  duty  to  make  this  agreement  with  the  plaintiff 
to  sell  the  goods  and  to  hold  the  proceeds  for  the 
plaintiff  in  a  certain  event.  He  had  no  legal  authority, 
as  sheriff,  to  sell  these  goods  and  to  hold  the  money 
on  bailment  for  the  plaintiff.  If  the  plaintiff  trusted 
him  with  the  custody  of  the  cjoods,  and  crave  him 
authority  to  sell  them,  he  became,  so  far,  the  agent  of 
the  plaintiff,  and  the  plaintiff  must  look  to  him  merely 
as  his  agent ;  he  cannot  hold  the  sureties  bound  for 
executory  contracts  of  this  sort,  entered  into  without 
their  consent.  If  so,  there  would  be  scarcely  a  limit  to 
their  responsibility ;  for  contracts  of  this  sort  might  run 
for  years,  and  represent  every  variety  of  complication. 
If  the  sheriff  had  retained  the  goods,  he  might  have 
obtained  a  bond  of  indemnity  from  the  other  creditors; 
or  if  the  plaintiff  had  given  bond,  he  might  have  re- 
lieved the  sheriff  from  the  custody  of  the  goods.  But 
here  the  sheriff  assumes  by  this  agency,  a  responsi- 
bility for  himself  and  his  sureties,  greater  in  degree  and 
different  in  kind  from  that  imposed  by  law,  and  it 
would  be  unjust  and  impolitic  to  encourage  such  deal- 
ings by  holding  sureties  responsible  for  them." 

Where  the  obligors  in  a  sheriff's  bond,  l)ind  them- 
selves, jointly  and  severally,  in  specific  sums  desig- 
nated, they  may  all  be  joined  in  the  same  action,  but 
.separate  judgments  are  required.  {People  vs.  Edwards, 
9  Cal.  286.) 

The  sureties  of  a  sheriff  are  not  liable  for  any  statu- 
tory p(Mialt\'  imposed  upon  him  for  neglect  of  official 
duty.  The  sur('ti('s  an-  liable  only  for  actual  damages 
sustained,      {(rlascock-  vs.  Ashman,  52  Cal.  4g3-) 


SUITS    AdAINSr    SHERIFFS.  §§  638,    639 

§  638.    Sheriff's  Notice  to  Sureties. — It  is  of  the 

■greatest  importance  to  an  officer  that  the  sureties  on  an 
indemnity  bond  given  to  him,  be  promptly  notified  of 
any  suit  brought  against  him  by  a  party  claiming  prop- 
erty seized  under  process.  Section  1055  of  the  Code 
of  Civil  Procedure  of  California  provides  that  "if  an 
action  be  brought  against  a  sheriff  for  an  act  done  by 
virtue  of  his  office,  and  he  give  written  notice  thereof 
to  the  sureties  on  any  bond  of  indemnity  received  by 
him,  the  judgment  recovered  therein  shall  be  conclusive 
evidence  of  his  right  to  recover  against  such  sureties; 
and  the  court  may,  on  motion,  upon  notice  of  five  days, 
order  judgment  to  be  entered  up  against  them  for  the 
•amount  so  recovered,  including  costs." 

If  a  sheriff  is  indemnified  for  an  act  done  by  virtue 
of  his  office,  and  an  action  is  brought  against  him  to 
recover  damages  for  the  act,  and  judgment  is  recovered 
against  him,  the  sheriff  cannot  afterwards  have  judg- 
ment entered  on  motion  in  that  action  against  the  sure- 
ties on  the  indemnifying  bond  unless  he  give  the  sure- 
ties written  notice  of  the  action  brought  against  him. 
He  cannot  avail  himself  of  this  remedy,  but  is  left  to 
his  action  upon  the  indemnity  bond.  {Dennis  vs. 
Packard,  28  Cal.  loi.) 

§  639.    Defect  in  Sheriff's  Bond-^No  Defense. 

— -The  defect  in  the  approval  of  a  sheriff's  bond  cannot 
be  set  up  as  a  defense  in  an  action  on  said  bond  against 
the  sureties.  The  object  of  the  law  in  requiring  the 
approval  is  to  insure  greater  security  to  the  public,  and 
it  does  not  lie  in  the  obligors  to  object  that  their  bond 
was  accepted  without  proper  examination  into  its  suffi- 
ciency by  the  officers  of  the  law. 


.§§  640,  641  si'iTs  ACAixsT  siii;kiiis. 

§  640.  Bond  to  Indemnify  Sheriff  for  Unlaw- 
ful Act. — A  bond  oriven  to  a  sheriff  to  indemnify  him 
for  any  loss  or  damage  he  may  sustain  by  selling  prop- 
erty levied  on  by  him  by  virtue  of  an  execution  in  vio- 
lation of  an  order  enjoining  its  sale,  is  void,  because  an 
unlawful  contract.  {Buffendeau  vs.  Brooks,  28  Cal. 
642.)  In  this  case  the  judgment  had  been  set  aside 
and  a  temporary  injunction  issued.  The  bond  was 
dated  June  16,  but  was  not  delivered  to  the  sheriff 
until  June  28,  the  day  of  the  sale.  The  sheriff  erro- 
neously supposed  that  the  bond  would  indemnify  him 
for  selling,  notwithstanding  the  restraining  order. 

^641.    Agreement  to  Indemnify  Sheriff. — An 

agreement  to  indemnify  a  sheriff  for  seizing  property 
under  execution  is  valid,  if  the  parties  are  in  good  faith 
seeking  to  enforce  a  legal  right;  but  an  agreement  to 
indemnify  a  party  for  a  willful  trespass  about  to  be 
committed  is  against  public  policy  and  void.  In  the 
case  of  Stark  vs.  Ranev,  18  Cal.  622,  wherein  the 
sheriff  seized  and  sold  a  wagon  on  execution  in  lavor 
of  Raney,  who  pointed  out  the  wagon,  requested  the 
sheriff  to  seize  it,  and  verbally  agreed  to  hold  him 
harmless,  etc.,  it  was  hekl,  in  a  suit  by  the  sheriff  against 
Raney  for  damages  recovered  against  the  sheriff,  for 
the  .seizure,  that  the  agreement  to  indemnify  is  valid: 
that  it  was  not  a  "special  promise  to  answer  tor  the 
debt,  default  or  miscarriage  of  another,"  within  the 
.Statute  of  krauds-  because  the  sheriff  was  acting  not 
for  himself,  hut  as  agent  of  Raney,  and  the  promi.se 
was  to  be  n^sponsiblc  for  his  acts  as  such  agent.  it 
was  held,  further,  that  the  sheriff  was  entitled  to  recover, 
not  siinpK  liic  \aluc  of  the  property  which  he  had  been 
{•oin|)(lle(l  to  |)ay,  but  also  the  costs  incurred  by  him  in 


SUITS    AGAINST    SllKKIFFS.  §  642 

'defending  the  suit  brought  to  recover  such  value;  that 
his  claim  to  indemnity  extends  to  the  entire  damages 
to  which,  he  had  been  subjected  on  account  of  the 
seizure. 

§  642.     Liability   of   Sureties    on    Indemnity 

Bonds. — Where  a  sheriff  seizes  goods  on  two  attach- 
ments in  behalf  of  different  plaintiffs,  and  the  property 
being  claimed  by  a  third  person,  the  plaintiffs  in  the 
attachment  suits  execute  to  the  sheriff  separate  indem- 
nifying bonds,  there  is  no  joint  liability  between  the 
plaintiffs  to  the  sheriff  Each  bond  must  be  sued  on 
as  an  independent  obligation.  Where  an  indemnity 
bond  is  griven  to  a  sheriff  to  hold  him  harmless,  and 
pay  any  judgment  which  may  be  rendered  against  him 
by  reason  of  his  seizure  of  certain  property,  his  rem- 
edy at  law  on  the  bond  is  clear  for  the  amount  of 
any  such  judgment,  whether  he  be  solvent  or  not,  or 
whether  his  official  sureties  could  be  held  or  not,  and 
a  bill  in  equity  will  not  lie.  ( White  vs.  Fratt,  ij 
■Cal.  ^21.) 

A  bond  was  given  by  a  plaintiff  to  a  constable  to  in- 
demnify him  from  liability  for  selling  certain  property 
claimed  and  actually  owned  by  persons  other  than  the 
execution  debtor;  and  the  property  having  been  sold, 
and  the  owners  having  sued  the  constable  and  recov- 
ered judgment  against  him,  the  latter  assigned  the  bond 
to  them,  and  they  released  him  from  liability  on  the 
judgment:  Held  {McBeth  vs.  Mclntyre,  ^j  Cal.  4g), 
that  the  release  of  the  constable  did  not  operate  to  re- 
lease the  obligors  on  the  bond.  Substantially,  the  con- 
stable paid  the  judgment  against  him,  by  assigning  the 
bond. 


§§  643.  644         suns  ai;aixst  sherifp\s. 

§  643.  Alteration  of  Bond. —  In  an  action  by  a 
sheriff  on  an  indemnity  bond,  it  appeared  that  after  its 
execution  the  bond  had  been  altered  by  substituting 
"C.  J.  Hubner"  for  "J.  M.  Berry,"  as  the  claimant  of 
the  property  seized  by  the  sheriff,  and  afterwards  and 
before  the  trial,  by  erasing  the  former  and  restoring  the 
latter  name,  thus  restoring  it  to  its  original  condition; 
but  there  was  no  allegation  or  proof  that  the  alterations 
were  made  with  a  fraudulent  desig-n,  or  that  the  defend- 
ants  could  possibly  be  injured  by  them:  Held  {Rogers 
vs.  Shaw,  59  Cal.  260),  that  the  alterations  did  not  ren- 
der the  instrument  void. 

§  644.    Conditions  of  Indemnity  Bond.— If  in  a 

bond  to  indemnify  a  sheriff  for  replevying  property 
claimed  by  a  person  other  than  the  defendant  in  the 
writ,  the  obligors  undertake  to  indemnify  him  from  any 
damage  he  may  sustain  by  reason  of  any  costs,  suits, 
judgments,  and  executions  that  shall  come  or  be  brought 
against  him,  the  sheriff  cannot  maintain  an  action  on 
the  bond  because  a  judgment  has  been  recovered 
against  him,  but  must  first  pay  the  judgment.  [Lot  vs. 
Mitchell,  J2  Cal.  i*^.)  In  this  case  the  obligors  do  not 
undertake  anything  except  they  will  indemnify  the  sherift 
from  any  actual  damage  that  he  may  sustain  by  reason 
of  any  costs,  suits,  judgments  and  executions  that 
shall  come  or  be  brought  against  him. 

When  a  sheriff  takes  an  indemnity  bond  against  the 
claim  of  a  third  partx,  in  attachment  or  execution,  and 
it  is  provided  in  the  bond  that  the  officer  may  retain 
for  a  n-asonable  tinn-,  as  additional  security  against 
such  claim,  all  m()n(*ys  that  may  come  into  his  hands 
by  reason  of  sai«l  attachment  or  any  execution  in  said 
action,    the    term    "reasonable    time"  will    enable    the 


SUITS    ACAINST    SHERIFFS,  §  645 

officer  to  retain  such  moneys  until  the  determination 
of  any  suit  that  has  been  brought  against  him  therein 
by  the  claimant.      {Scherr  vs.  Little,  60  Cat.  614.) 

%  645.     Actions  upon   Indemnity  Bonds  — In 

stances  of  disastrous  results  from  loosely  drawn  com- 
plaints in  actions  to  recover  upon  undertakings  given 
to  prevent  the  levy,  and  for  the  release  of  attachments, 
are  so  frequent  that  a  word  or  two  upon  that  subject  is 
deemed  not  out  of  place  in  this  work.  If  the  complaint 
does  not  aver  either  that  the  mvintj  of  the  undertakino^ 
sued  on  prevented  the  levy  of  the  attachment,  or  that 
the  property  was  released  upon  the  giving  of  the  under- 
taking, it  fails  to  aver  the  very  gravamen  and  essential 
gist  of  the  cause  of  action  itself  In  an  action  upon  an 
undertaking  given  to  prevent  the  levy  of  an  attachment, 
in  the  case  of  Coburn  vs.  Pearson,  57  Cal,  306,  the 
complaint  stated  that  the  sheriff  did  proceed  to  levy 
upon  and  attach  certain  personal  property  ;  and  that 
before  the  completion  of  said  levy,  the  defendants,  for 
the  purpose  of  preventing  the  levy  or  the  completion 
thereof,  tendered  the  sheriff  the  undertaking  required 
by  law,  etc.,  which  undertaking  was  duly  taken  and 
accepted  by  the  sheriff.  It  was  held  that  the  complaint 
was  defective  in  not  stating  that  the  sheriff  did  not 
complete  the  levy,  or  that  he  proceeded  no  further 
therewith.      In  this  case  the  court  said: — 

"Assuming  that  the  words  'did  proceed  to  levy 
upon,'  etc..  do  not  necessarily  imply  that  the  sheriff 
took  the  property  into  his  possession  (and  any  acts 
clearly  indicating  his  purpose  to  subject  it  to  his 
control,  would  give  the  sheriff  the  legal  possession  as 
against  the  defendant  in  attachment),  the  complaint 
contains    no   averment  that  the   sheriff  did   not  'com- 


§  645  SUITS    ACIAIXST    SII  1';RI  Kl'S. 

plete '  the  levy,  or  that  he  proceeded  no  further 
therewith:  This  would  seem  to  be  necessary.  It  is 
urged  that  the  averment  that  the  sheriff  duly  took 
and  accepted  the  unciertaking  is  sufficient,  inasmuch 
as  that  it  will  be  presumed  that  the  sheriff  did  his 
duty,  and  that  he  w^ould  not  have  taken  the  under- 
taking and  also  the  property.  But  such  presumptions 
are  applied,  in  proper  cases,  as  a  rule  of  evidence,  not 
ot  pleading.  A  party  must  allege  the  material  ultimate 
facts,  even  although  some  other  fact,  if  proven,  might 
create  a  presumption  of  the  existence  of  one  of  the 
facts  alleged.  Besides,  here  there  can  be  no  doul)t 
that  the  burden  was  cast  on  plaintiff  at  the  trial  to 
prove  the  cessation  of  proceedings  towards  a  levy,  or  a 
return  of  the  property  to  the  extent  to  which  a  caption 
had  been  effected.  Otherwise,  the  consideration  of  thu 
undertaking  (not  under  seal)  would  not  be  proven.  In 
Palmer  z's.  Melvin,  6  Cal.  651,  it  was  held  that  a  com- 
plaint upon  a  bond  given  to  release  property  from  at- 
tachment was  defective,  because  it  did  not  aver  that 
the  property  was  released  upon  the  delivery  of  the 
bond."  The  court  said:  "It  is  necessary  to  allesje 
the  consideration  for  the  undertaking,  and  a  mere 
reference  to  the  condition  of  the  bond  is  insufficient." 
The  same  rule  is  laid  down  in  Williamson  vs.  Blattan, 
9  Cal.  500,  where  the  court  say,  further,  that  "the 
failure  to  allege  the  release  of  the  proi)ert\'  may  be 
taken  advantage  o{  hy general  denmrrer.^'  In  Nicker- 
son  7'S.  Chatterton,  7  Cal.  56S,  it  was  heltl  that  in  an 
action  against  th('  sureties  on  a  replevin  bond,  it  is 
n<jcessary  to  allege  that  the  proj)erty  was  delivered  to 
the  party  for  whtjm  the  bond  was  gi\ en  ;  in  Los  An- 
gel(!S  7>s.  l^)abrock,  45  Cal.  252,  that  in  a  suit  on  a  bail 
bond  ill'-  (  ((inplainl  iniisl  allege  that    the    person   bailed 


SUITS    ACALVST    SHKRIFFS.  §  646 

was  released  from  custody;  in  Jenner  z^s.  Stroh,  ^2 
Cal.  504,  that  when  action  was  commenced  on  an  un- 
dertaking given  to  procure  the  vacation  of  a  default 
judgment,  the  complaint  should  have  averred  that  the 
judgment  was  set  aside.  In  such  cases  the  considera- 
tion for  which  the  undertaking  is  executed  and  deli\'- 
ered  must  be  alleged  and  proved. 

§  646.     Plaintiff  Bound  by  His  Bond. — In  the 

case  of  Graves  vs.  Moore,  58  Cal.  435,  the  plaintili, 
as  sheriff,  under  an  execution  in  favor  of  the  defend- 
ants, Moore,  Hunt  &  Co.,  levied  on  certain  personal 
property,  including  a  billiard  table ;  but,  before  the 
sale,  Strahle  &  Co.,  and  also  one  Soberanes,  each 
claimed  the  property  pursuant  to  Sec.  689  of  the  Code 
of  Civil  Procedure.  The  sheriff  sent  written  notice  of 
the  claim  made  by  Soberanes,  and  also  (it  is  claimed) 
of  the  claim  of  Strahle  &  Co.,  to  Moore,  Hunt  &  Co., 
who  delivered  to  the  sheriff  an  indemnity  bond  against 
the  claim  of  Soberanes,  and  ordered  him  to  sell.  After 
the  sale,  Strahle  &  Co.  sued  the  sheriff  for  the  value 
of  the  property,  which  was  paid.  I  n  an  action  brought 
by  the  sheriff  to  recover  the  amount  of  the  judgment, 
also  $100  paid  as  counsel  fees,  the  court  found,  among 
other  facts,  that  the  plaintiff  notified  the  defendants 
ot  the  claim  of  Strahle  &  Co.,  and  was  thereupon 
directed  to  sell.  It  appears  that  upon  being  served 
with  the  summons  in  the  suit  brought  against  him  by 
Strahle  &  Co.,  the  sheriff  notified  the  attorney  of 
Moore,  Hunt  &  Co.,  who  appeared  in  the  action,  but 
afterwards  abandoned  the  same,  and  notified  the  sher- 
iff that  they  would  make  no  further  defense.  The 
court  found  that  the  officer  was  entitled  to  recover, 
not  only  the  amount  of  the  judgment,  but  also  counsel 


§  647  SUITS    AGAINST    SHERIFFS. 

fees,  because  Moore,  Hunt  &  Co.,  by  their  agreement 
of  indemnity,  engaged  to  save  the  sheriff  from  the 
legal  consequences  of  selling  the  property  of  the  claim- 
ant, and  their  engagement  applied  not  only  to  the  act 
of  selling,  but  to  all  the  consequences  resulting  to  him 
from  that  act.  {Civil  Code,  Sees.  2772,  2'/y^.)  Hav- 
ing been  compelled  to  pay  by  the  judgment  against 
him,  he  had  a  right  to  recover  not  only  the  amount  of 
the  judgment,  but  the  expenses  attending  the  action 
which  he  had  to  defend.  {Duffielei  vs.  Scott,  j  T.  R. 
jy^ ;  Stai^k  vs.  Raney,  18  Cal.  622. ) 

The  judgment  against  the  sureties  is  conclusive  evi- 
dence of  his  right  to  recover  against  them  on  the 
bond  of  indemnity,  nor  can  they  complain,  as  by  vir- 
tue of  Sec.  387,  Code  of  Civil  Procedure,  California, 
the  sureties  have  the  right  to  intervene  in  the  suit 
against  the  officer  and  defend  the  suit  as  a  party  to  tht- 
record. 

^  647.  Judgment  against  Sheriff. — The  provi- 
sion (jf  the  statute  making  the  judgment,  in  an  action 
against  a  sheriff,  conclusive  evidence  against  his  in- 
demnifier,  where  the  latter  has  been  notified  of  the 
action,  is  founded  upon  the  principle  that  the  action, 
under  such  circiinistanct-s,  is  in  substance  against  the 
indemnifier — the  real  property  in  interest — and  that  he 
has  in  that  action  an  opportunity  to  make  any  defense 
that  may  exist.  Where,  th(;refore,  the  indemnifier 
has  be(Mi  notified  of  the  action  against  the'  sheriff,  he 
cannot  mainlain  a  bill  in  e(iuity  to  si;t  aside  the  judg- 
ment obtained  therein,  except  undcM"  such  conditions 
as  wouKl  ha\'c  enabled  him  to  maintain  it  had  he  bet:ii 
the  nominal  as  well  as  real  party  dc^fendant  to  the  first 
action.      {Ihitil vs.  /'ac/ieco,  2/  Cal.  4.^2.) 


SUITS  a(;ainst  sheriffs.         5'5  648  650 

§  648.  An  Estoppel  That  Protects  the  Sher- 
iff,-—  If  a  court  or  referee,  on  proceedings  supplemen- 
tary to  execution,  orders  property  of  the  judgment 
debtor  to  be  delivered  up  to  the  sheriff  to  be  sold  on 
the  execution,  the  judgment  creditor  is  estopped  by  the 
order  from  maintaining  an  action  against  the  sheriff 
for  selling  the  property.  {McCzillotigh  vs.  Clark,  41 
Cal.  J04.)  In  this  case  the  judgment  debtor  had  an 
insurance  policy  which  he  claimed  to  be  exempt  from 
execution.  The  court  decided  that  that  particular 
policy  was  not  exempt,  and  that  the  sheriff,  in  seeking 
to  apply  it  toward  the  payment  of  the  judgment,  in 
obedience  to  that  order  of  the  court,  was  only  per- 
forming a  duty  enjoined  upon  him  by  law,  and,  there- 
fore, could  not  be  treated  as  a"  wrongdoer. 

§    649.    Indemnity    Bond — Jurisdiction    of 

Courts. —  In  an  action  against  the  sheriff  by  claimants 
of  attached  property,  when  judgment  has  been  ren- 
dered against  him,  and  he  moves  for  judgment  over 
ao-ainst  the  sureties  on  an  indemnitv  bond  ofiven  to 
him,  under  Sec.  1055  of  the  Code  of  Civil  Procedure, 
the  Superior  Court,  in  which  the  action  was  brought, 
has  jurisdiction  to  give  judgment  against  the  sureties, 
although  each  is  bound  for  less  than  three  hundred 
dollars.      [Moore  vs.  Mc Sleeper,  T02  Cal.  2'/'/.) 

§  650.  Penalty  for  Not  Paying  Over  Moneys. 

— ^The  statutory  penalty  against  sheriffs  for  the  nonpay- 
ment of  moneys  collected  on  execution  is  only  recov- 
erable when  the  sheriff,  by  his  return,  admits  the  col- 
lection of  the  money,  but  refuses  to  pay  it  over.  If  it 
were  otherwise,  an  error  in  judgment,  or  even  a  hesita- 
tion to  decide  between  adverse  claimants,  might   work 


§§651.   652  SUITS    AGAINST    SHERIFFS, 

the  ruin  of  any  honest  and  conscientious  officer.  The 
Statute  gives  twenty-five  per  cent  damages  on  the- 
amount  collected,  and  ten  per  cent  per  month  in  addi- 
tion, from  the  time  of  the  demand.  It  not  infrequently 
occurs  that  a  sheriff,  on  account  of  contests  between 
creditors,  and  his  own  inability  to  decide  the  right, 
declines  a  demand,  which  turns  out  to  have  been  justly 
and  properly  made.  In  such  a  case,  to  deprive  him  of 
the  benefit  of  his  return,  and  visit  upon  him  the  heavy 
penalties  of  the  statute  for  failing  to  pay  the  money  on 
demand,  would  be  a  cruelty  and  injustice  which  the  law 
never  contemplated.  The  argument  that  sheriffs  might 
avail  themselves  of  this  doctrine  and  make  false  returns, 
so  as  to  avoid  the  penalties  of  the  Act,  should  be  with- 
out any  weight,  and  not  entitled  to  consideration.  The 
courts  will  presume  that  every  officer  will  faithfully  per- 
form his  duty,  and  has  done  so  in  every  instance,  until 
the  contrary  is  shown. 

5  651.  Remedy  by  Motion. — The  remedy  by  mo- 
tion against  a  sherift  and  his  sureties,  to  compel  him  to 
pay  over  money  collected  on  execution,  was  only  given 
for  cases  of  intentional  delinquency  on  the  part  of  the 
sheriff,  as  a  punishment  for  his  willful  or  corrupt  neg- 
lect of  duty,  and  was  not  designed  to  embrace  a  case 
in  which  h(;  declined  to  pay  over  moneys  collected  un- 
der circumstances  of  a  hona-Jidc  well-grounded  doubt 
of  the  authority  of  the  party  to  demand  it.  {Wilson 
vs.  Jh'oder,  10  Cal.  486.) 

\  652.  Liability  for  Acts  of  Deputy,  in  an  ac- 
tion of  trespass  against  a  sheriff,  where  he  is  declared 
against  jjersonally  and  not  as  sherilf,  it  is  competent  to 
pro\'e  tliat  the  defendant  was  sJKriff  and  that  his  deputy 


SUITS    AGAINST    SHERIFFS.  §§  653-655 

as  such  committed  the  trespass.  The  sheriff  is  Hable 
for  the  acts  of  his  deputy.  In  such  a  case  it  is  not 
necessary  to  prove  that  the  defendant  directed  his  deputy 
to  seize  the  particular  property  in  question,  in  order  to 
hold  the  defendant  liable.  {Poinsett  vs.  Taylor,  6 
Cat.  j8.)     See  also  Sections  17,  631,  ante. 

§  653.    Officer  Not  Responsible  through  Laches 

of  Another.-  1 1  is  held,  in  Lick  vs.  Madden,  36  Cal. 
208,  wherein  a  county  clerk  was  sued  for  an  alleged 
failure  to  perform  his  duty  in  the  matter  of  issuing  a 
writ  of  attachment,  that  "although  public  officers  should 
be  made  to  answer  in  damages  to  all  persons  who  may 
have  been  injured  through  their  malfeasance,  omission, 
or  neglect,  but  if  the  damages  would  have  been  sus- 
tained, notwithstanding  the  mal-conduct  of  the  officer, 
or  if  the  injured  party  has  by  his  fault  or  neglect  con- 
tributed to  the  result,  the  officer  cannot  be  held  respon- 
sible." 

§  654.    Release  of   Sheriff  by  Stipulation.— 

Where  an  action  of  replevin  is  brought  to  recover  prop- 
ertv  in  the  possession  of  a  sheriff  under  attachment, 
and  the  parties  stipulate  that  the  property  shall  be 
turned  over  to  a  third  party  to  await  the  final  judgment 
in  the  cause,  the  sheriff  is  released  from  all  liability,  and 
a  judgment  in  form  only  can  be  taken  against  him. 
( Temple  vs.  Alexander,  5?  Cal.  j. ) 

5  655.    Offices  of  Sheriff  and   Tax  Collector 

Separate. — The  offices  of  sheriff  and  tax  collector  are 
as  distinct  as  though  filled  by  different  persons.  The 
duties  and  obligations  of  the  one  are  entirely  independ- 
ent of  the  duties  and  obligations  of  the  other.      Thev 


§  656  SUITS  A(;ainst  sheriffs. 

are  not  so  blended  that  the  bond  executed  for  the 
faithful  performance  of  the  duties  appertaining  to  the 
one  would  embrace,  in  the  absence  of  the  statute,  the 
obligations  belonging  to  the  other.  {^People  vs.  Ed- 
tvards,  g  Cal.  286.) 

\  656.  Principal  and  Deputy  Levy  of  Sepa- 
rate Writs. —  In  the  case  of  Whitney  vs.  Butterworth, 
13  Cal.  336,  the  court  said:  "This  question  touches  the 
liability  of  the  sheriff  for  not  levying  an  attachment  put 
in  his  hands  on  Sunday;  the  goods  of  defendant  having 
been  seized  by  his  deputy  on  Monday,  though  the  last 
writ  came  to  his  hands  early  on  the  same  day  and  was 
levied  on  the  property  which  was  disposed  of  by  the 
last  writ — so  that  the  first  remained  unsatisfied.  .  .  , 
The  speed  with  which  the  sheriff  must  proceed  may 
depend  upon  the  apparent  necessity  for  quick  action. 
But  we  have  found  no  case  which  holds  that  the  mere 
delay  of  a  few  hours,  without  some  showing  of  special 
urorencv,  has  been  held  sufficient  to  chartre  the  sheriff 
If  we  suppose,  then,  that  the  process  reached  the- hands 
of  the  principal  sherift' at  one  o'clock  on  Monday  morn- 
ing, we  do  not  perceive  that  the  sheriff  would  have 
been  liable — nothing  else  appearing — for  failure  to  levy 
it  before.  But  the  particular  facts  of  this  case  make  it 
stronger  for  the  sheriff  The  attachment  of  plaintiff 
was  |>laced  in  the  j)rinci|)al  sh(M"ifl's  hands  on  the  night 
of  Sunday  between  nine  and  ten  o'clock.  But  it  did 
Dol  l('gally  come  to  his  hands  as  sheriff  and  for  service 
until  twelve;  o'clock.  I'ifteen  minutes  after  twelve  the 
other  attachment  canu:  to  the  hands  of  the;  deputy;  of 
this,  it  seems,  the  sheriff  had  nu  notice;  and  the  deputy 
levifxl  it  at  or  about  one  o'clock.  It  seems,  then,  that 
the   laclvs  of  the  sheriff  in   delavini/  this  l(;vv   for  an 


SUITS    AGAINST    SHERIFFS.  §  656 

hour  at  midnight,  is  the  foundation  of  his  liability. 
This  would  be  too  harsh  and  unreasonable  a  requisition. 
It  is  plausibly  argued  that  the  deputy  and  his  principal 
are  the  same  person  in  law;  and  that  the  attachment  in 
the  hands  of  the  defendants  is,  in  legal  effect,  in  the 
hands  of  the  principal;  and,  consequently,  the  case  is 
that  of  an  officer  having  a.  senior  writ  and  levying  a 
junior  wTit  on  the  property  of  the  defendant.  But  the 
answer  to  this  argument  is  that  here  the  question  is 
one  of  diligence,  and  that  it  cannot  be  contended  that 
the  mere  omission  of  the  deputy  to  inform  the  princi- 
pal of  his  having  process  is  such  negligence  as  to 
charge  him. 

''  We  have  seen  that  the  sheriff  is  not  absolutely  re- 
sponsible for  not  executing  process  of  this  sort.  He 
is  responsible  for  unreasonably  or  not  reasonably  exe- 
cuting such  process.  But  the  test  is,  Was  a  failure,  in 
the  absence  of  any  special  circumstances,  to  execute 
//lis  process,  unreasonable,  or  did  it  subject  the  sheriff 
to  responsibility  for  the  debt?  We  may  in  this  con- 
nection leave  out  of  question  the  discussion  as  to  the 
day  (Sunday)  on  which  the  writ  of  the  plaintiff  was 
received.  It  is  certain  that,  for  all  judicial  purposes, 
.Sundav  is  no  day  at  all.  The  sheriff  need  not,  on 
that  day,  indorse  on  the  writ  the  fact  of  its  reception. 
If  given  to  him  on  that  day  he  did  not  receive  it  as  an 
officer,  but  as  the  mere  agent  of  the  plaintiff.  He 
could  do  nothing  with  it  on  that  day.  He  might,  if  he 
chose,  recognize  the  receipt  of  it,  but  it  imposed  on 
him  no  higher  or  other  duties  than  if  he  had  received 
it  on  the  next  day.  He,  for  all  practical  purposes,  so 
far  as  respects  this  writ,  was  not  the  sheriff  at  all  on 
Sunday.  But  we  may  safely  concede,  for  all  purposes 
of  this   suit,  that   he   received   the  process  on  the  next 


§  656  SUITS    AGAINST    SHERIFFS. 

day,  and  even  at  the  beginning  of  that  day.  Was  he 
bound,  then,  on  this  assumption,  to  go  on  and  execute 
the  writ,  immediately  after  having  received  it,  no  pecul- 
iar necessity  or  apparent  reason  being  shown  why  he 
should  do  so?  No  authorities  have  been  cited  to 
show  that  a  sheriff  is  bound  to  quit  everything  else, 
immediately,  on  receiving  an  attachment  or  execution, 
and  proceed  to  levy. 

"The  deputy  had  received  Clark  &  Co.'s  attachment 
early  in  the  morning  of  Monday,  perhaps  at  the  very 
instant  which  marked  the  period  which  separated  Sun- 
dav  from  Monday  in  the  computation  of  time.  But 
thoucfh  Whitney's  writ  was  in  the  hands  of  the  sheriff 
before  this  time,  yet  the  sheriff  could  do  nothing  with 
it — did  not  legally  even  receive  it  in  his  official  capacity 
before.  His  connection  with  the  writ  of  Whitney,  as 
sheriff,  commenced  at  the  very  time — at  the  utmost — 
when  his  deputy  had  the  writ  of  Clark.  Hut  if  Clark 
had  no  writ,  we  do  not  see  that  the  sheriff  would  have 
been  bound  to  go  at  once,  on  the  instant  when  Monday 
commenced,  and  levy  on  the  property  of  the  defend- 
ants in  attachment.  Nor  was  the  sheriff  bound  to  the 
degree  of  diligence  which  required  him  to  communicate 
to  his  deputy  the  intelligence  that  he  had  received  the 
writ  <jf  Whitney  before  the  deputy  levied  the  process 
of  Clark.  Attachments  do  not  bind  the  pro])erty  of  the 
defendant  from  the  time  of  the  issuance,  but  only  from 
th('  time  of  the  actual  levy,  and  the  attachment  first 
levied,  l)y  our  statute,  has  the  priority. 

"  Hut,  probably,  we  might  put  this  case  on  a  l)roader 
grountl.  The  sheriff  coukl  no  more  officially  receive 
a  writ  on  Siinda)-  for  service  on  Sunday  than  he  could 
<.'xecut<'  il  on  Sunday.  I)()th  lh«^se  acts  arc  of  the 
same   gf-neral  character,   and   c(|ually    within    the    |)r()- 


SUITS  a<;a!\si    sheriffs.  §  656 

hibition  of  the  statute.  Not  receiving  it  then  as  sherift, 
he  received  it  as  the  mere  agent  of  the  plaintiff.  He 
so  received  it,  not  to  execute  it  on  Sunday,  or  to  deal 
with  it  as  a  writ  coming  to  him  on  that  day  as  an  offi- 
cer. He  mi^ht  have  been  bound,  as  an  a<jent,  to 
deliver  it  to  the  sheriff,  or  to  treat  it  as  delivered  when 
he  could  act.  But  this  was  a  personal,  not  an  official 
contract ;  it  was  a  mere  bailment  which  bound  him, 
probably,  as  a  man,  but  did  not  bind  him  as  a  sheriff, 
and,  if  he  chose  to  disregard  it  entirely,  we  do  not  see 
that  he  would  be  bound  as  an  officer.  It  is  not  neces- 
sary to  press  this  point,  for  the  reason  that  if  he  was 
bound  to  consider  it  as  placed  in  his  hands  on  Monday, 
at  one  o'clock,  there  was  no  such  negligence  in  failing 
to  execute  it  before  as  to  subject  him  to  liability.  It 
is  true  that  it  may  be  urged  that  the  sheriff  and  the 
deputy  are  one  person  in  law ;  true,  so  far  as  this,  that 
the  sheriff  is  responsible  for  the  acts  of  the  deputy:  but 
no  one  would  contend  that  if  a  sheriff  has  a  deputy  at 
a  remote  precinct  of  a  county,  and  a  writ  is  placed  in 
his  hands,  and  he  executes  it  on  property  in  his  pre- 
cinct, that  the  sheriff  would  be  responsible  for  this,  if 
the  consequence  were  to  deprive  B  of  the  recovery  of 
a  claim,  as  the  result  of  this  levy- — B  having  put  a  writ 
in  the  hands  of  the  sheriff,  at  the  county  seat,  an  hour 
before  the  writ  was  placed  in  the  hands  of  the  deputy. 
Whitney  trusted  the  sheriff  to  consider  that  the  writ 
would  be  in  his  hands  on  Monday,  and  to  receive  and 
execute  it  as  if  it  were  handed  to  him  on  that  day ;  but 
even  if  it  had  been,  the  sheriff  was  not  bound  to  get 
out  of  his  bed  (no  special  circumstances  existing)  on 
the  morning  of  that  day,  at  one  o'clock,  and  immedi- 
ately proceed  to  the  execution  of  the  writ.  It  would 
be  unjust  to  hold  the  sheriff  to  this  degree  of  diligence, 
and,  we  think,  illegal.  We  reverse  the  judgment,  and 
remand  the  case."     (See  also  Section  221,  anh\) 


CHAPTER    XXII 


WRIT  OF  ASSISTANCE. 


§  657.  Object  of  the  Writ. 

§  658.  Plaintift'  Entitled  to  Immediate  Service. 

§  659.  Against  Whom  Will  Issue. 

§  660.  When  Writ  Will  Be  Refused. 

§  661.  When  Writ  of  Assistance  May  Issue. 

§  662.  Where  Tenants  in  Common. 

§  663.  Who  Not  to  be  Removed. 

§  664.  Alias  Writ. 

§  665.  False  Return. 

^  657.  Object  of  the  Writ. — A  v^rit  of  assistance 
is  the  appropriate  remedy  to  place  the  purchaser  of 
mortgaged  premises,  under  a  decree  of  foreclosure,  in 
possession,  after  he  has  obtained  the  sheriff's  deed. 

^  658.  Plaintiff  Entitled  to  Immediate  Serv- 
ice.—  Under  the  writ  of  assistance,  the  party  for  whose 
ben('fit  it  is  issued  is  entitled  to  immediate  possession. 
The  writ  commands  the  sheriff  to  forthwith  place  the 
plaintiff  in  possession,  and  it  is  only  by  his  consent  that 
any  delay  in  its  service  can  be  permitted. 

In  the  case  of  Chapman  vs.  Fhornburg,  17  Cal.  87, 
where  the  sheriff  received  a  writ  of  assistance,  com- 
in.iiidiiig  him  lorlJnvith  to  deliver  possession  of  certain 
nal  estatr:   lo   plaintiff,   and    went   with   plaintiff  to  the 


WRIT    OF    ASSISTANCE,  §  659 

premises  for  the  purpose  of  putting  him  in  possession, 
but  for  some  reason  not  stated — in  opposition  to  plain- 
tiff's wishes  and  against  his  protestations — he  declined 
to  take  any  action  in  the  matter,  and  then,  on  a  subse- 
quent day,  the  sheriff  proceeded  to  execute  the  writ; 
but  the  parties  in  possession,  being  the  parties  against 
whom  the  writ  ran,  had,  in  the  meantime,  destroyed  a 
number  of  valuable  fixtures,  and  by  their  willful  and 
malicious  acts  had  injured  the  premises  in  other  re- 
spects: Held,  that  the  sheriff  was  liable  for  the  damage 
thus  done;  that  he  was  presumed  to  know  what  his  duty 
was,  and  to  have  acted  in  willful  violation  of  it;  and 
that,  as  his  duty  was  to  execute  the  writ  at  the  earliest 
practicable  moment,  and  he  neglected  and  refused  so  to 
do,  it  was  through  his  fault  that  the  parties  in  posses- 
sion were  enabled  to  commit  the  injury,  and  he  must 
respond  in  damages,  however  remote. 

§  659.    Against  Whom  Will  Issue.— A  writ  of 

assistance  can  only  issue  against  the  defendants  in  the 
suit,  and  parties  holding  under  them  who  are  bound  by 
the  decree.  In  a  suit  for  foreclosure,  all  persons  inter- 
ested in  the  premises,  prior  to  the  suit,  whether  pur- 
chasers, heirs,  devisees,  remainder-men  or  incumbranc- 
ers, must  be  made  parties,  otherwise  their  rights  will 
not  be  affected.  The  purchaser  under  a  decree  takes 
a  title  only  as  against  the  parties  to  the  suit.  {Mont- 
gomery vs.    Tutt,  II  Cal.  J 1 4.) 

One  Lefevre,  a  married  man,  purchased  certain  real 
estate,  subject  to  a  mortgage  thereon,  which  had  been 
previously  executed  by  his  grantor,  and  soon  afterwards 
died.  The  mortefaeee  commenced  an  action  to  fore- 
close  the  mortgage,  making  the  executors  of  Lefevre, 
but  not  the  widow,  a  party,  and  after  a  decree  of  fore- 


§  66o  WRl'I-    OF    ASSISTAXCK. 

closun'-  and  sale  and  expiration  ol  the  time  of  redemp- 
tion, received  the  sheriff's  deed  (himself  being  the  pur- 
chaser), and  thereupon  applied  to  the  court  for  a  writ 
of  assistance  against  the  widow,  who  retained  posses- 
sion of  a  portion  of  the  premises,  which,  on  demand, 
she  refused  to  surrender:  Held,  on  appeal  from  an  or- 
der denying  the  writ,  that  the  denial  was  proper;  that 
the  estate  conveyed  to  Lefevre  became  thereby  the 
common  property  of  himself  and  wife;  that  upon  his 
death,  the  title  to  one-half  of  this  property  vested  in 
her,  subject  only  to  the  mortgage  and  the  lien  for  the 
payment  of  debts;  that  this  title  was  not  affected  by 
the  proceedings  in  the  foreclosure  suit  to  which  she  was 
not  a  party;  and  that,  not  being  bound  by  the  decree, 
a  writ  of  assistance  could  not  be  issued  against  her. 
{Burton  vs.  Lies,  21  Cal.  88?) 

A  person  who,  pending  an  action  for  the  foreclosure 
ot  a  mortgage,  and  with  notice  of  its  pendency,  pur- 
chases from  one  of  the  defendants  therein  a  portion  of 
the  mortgaged  premises,  occupies  the  same  position  as 
his  grantor  in  reference  to  the  issuance  of  a  writ  of 
assistance  in  favor  of  the  purchaser  under  the  decree. 
{Montgo77iery  vs.  Byers,  21  Cal.  foj.)  See  also  Sees. 
661-2,  posi. 

^  660.    When  Writ  Will  Be  Refused.    If  the 

court,  in  an  action  to  foreclose  a  mortgage,  does  not 
acquire  jurisdiction  of  the  person  owning  the  land  at 
th(;  tim(.'  of  the  fon^closure,  a  writ  of  assistance  against 
the  owner  or  his  grantees  will  be  refused.  {Steinbach 
vs  Leese,  2y  Cal.  2g6.) 

A  writ  of  assistance  will  not  Ik.'  issued  against  a  pm"- 
(  baser  of  th«  mortgaged  premises  who  buys  during  the 
pcndcncN   of   a  suit  to  foreclose,  and  who  is  not  a  party 


WRI'l"    (JK    ASSISIANCK.  §   66 1 

to  the  suit,  without  actual  or  constructive  notice  of  its 
pendency.  {Harlan  vs.  Rackerby,  24  Cal.  561.)  In 
this  case  the  lis  pendens  m  the  foreclosure  suit  was  filed 
subsequent  to  the  purchase  of  the  property  from  the 
defendant  in  that  suit,  and  the  purchaser  was  entided 
to  be  heard  in  his  defense  before  he  could  be  deprived 
of  his  property. 

In  Langley  vs.  Voll.  54  Cal.  435,  upon  an  applica- 
tion for  a  writ  of  assistance,  to  place  the  grantee  of  the 
l)urchaser  of  real  estate  under  a  judgment  sale  in  pos- 
session, it  appeared  that  the  defendants  had  acquired, 
or  claimed  to  have  acquired,  a  new  right  to  the  posses- 
sion from  the  purchaser  ;  it  was  held  that  the  writ  should 
have  been  denied,  and  the  parties  left  to  settle  their 
rights  in  a  regular  suit. 

A  party  who  forecloses  a  mortgage,  given  by  one 
partner  on,  and  obtains  a  sheriffs  deed  for,  an  un- 
divided interest  to  partnership  property,  without  mak- 
ing the  other  partner  a  party  to  the  action,  is  not 
entitled  to  a  writ  of  assistance  to  be  placed  in  possession, 
as  against  a  receiver  who  has  been  appointed  by  the 
court,  at  the  instance  of  such  other  partner,  in  an  action 
commenced  by  him  to  dissolve  the  partnership,  and 
have  the  partnership  property  sold  to  pay  the  debts. 
{Autenreith  vs.  Hessenauei^  ^j  Cal.  js6.) 

§  661.    When  Writ  of  Assistance  May  Issue.— 

The  power  of  a  court  to  issue  writs  of  assistance  is 
limited  to  sales  on  judgments  rendered  by  the  same 
court  to  which  the  application  for  a  writ  of  assistance 
is  made,  and  also  for  the  putting  in  possession  of  a 
purchaser  under  a  constable's  deed,  in  which  last  case 
,tbe  writ  may  issue  out  of  the  proper  court  of  record 
vipon  showing  made  as  to  the  judgment  under  which 
sale  was  made.      {People  vs.  Doe,  ji  Cal.  220.) 


5§  662,    663  WRIT    OF    ASSISTANCE. 

If  the  decree  in  a  foreclosure  suit  directs  the  sale  of 
all  the  mortgaged  premises,  and  forecloses  and  bars 
the  equity  of  redemption  of  the  defendants,  and  directs 
that  the  purchaser  at  the  sheriff's  sale  be  let  into  pos- 
session, the  person  who  receives  the  sheriffs  deed,  after 
a  sale,  is  entitled  to  a  writ  of  assistance  as  ag-ainst  all 
the  defendants  who  were  served  with  process  or  ap- 
peared in  the  action.  This  rule  prevails  as  against  a 
defendant  who  is  not  mentioned  in  the  decree  by  name, 
and  also  against  one  whose  name  is  not  mentioned  in 
the  sheriff's  deed.      {^Frishie  vs.  Fogarty,  j4  Cal.  11.) 

\  662.    Where  Tenants  in  Common.     It  is  the 

duty  of  the  sheriff,  in  the  execution  of  a  writ  of  assist- 
ance, to  place  the  purchaser  on  foreclosure  of  mortgage 
of  an  estate  in  common  in  the  possession  of  every  part 
and  parcel  of  the  land,  jointly  with  the  other  tenants  in 
common.  (Tezns  vs.  Hicks,  j8  Cal.  2^4.)  In  this  case 
the  sherift  found,  on  going  to  the  ranch  of  defendant, 
that  Mrs.  Hicks,  wife  of  defendant,  held  in  her  own 
right,  as  her  separate  property,  an  undivided  inter- 
est in  the  whole  rancho,  derived  from  a  source  inde- 
pendent of  her  husband.  In  the  opinion  of  the  court 
"she  was  not  liable,  under  any  writ  to  which  the  ap- 
plicant has  shown  himself  entitled,  to  be  ejected  or 
removed  from  the  rancho,  or  any  portion  thereof;  but 
she,  or  anyone  in  possession  for  her,  was  and  is  bound 
to  admit  the  applicant  to  a  joint  and  common  possession 
and  occupancy  with  her,  not  on!)  of  the  house  and  two 
hundred  acres  surrounding  the  same,  but  of  every  part 
and  parcel  of  the  entire  rancho. 

^  663.     Who  Not  to  be  Removed.     In  thr  cxtcu- 

tioii  of   ih''    writ,  the  shcriM   cannot   remox'e  anv  of    the 


WRIT    OF    ASSISTANCE.  §§  664,   665 

tenants  in  common  who  hold  under  a  title  derived  from 
a  source  independent  of  him  through  whom  the  pur- 
chaser claims.      {Tevis  vs.  Hicks,  j8  Cal.  2J4.) 

§  664.  Alias  Writ. —  If  the  return  to  the  first  writ 
does  not  clearly  declare  that  it  has  been  fully  executed, 
and  it  is  made  to  appear  by  affidavits  that  it  has  not 
been,  it  is  competent  for  the  court  to  issue  another 
writ.      ( Tevis  vs.  Hicks,  j8  Cal.  2J4. ) 

§  665.  False  Return. —  If  the  sheriff  neglects  or 
refuses  to  fully  execute  the  writ,  or  makes  a  false  return 
of  his  acts  thereunder,  he  is  liable  to  the  party  aggrieved 
for  all  accruing  damages. 


CHAPTER    XXIII. 

WRIT    OP'    RESTITUTION. 

Requirements  of  the  Writ. 
Writ  Does  Not  Determine  Right  of  Property. 
Whom  the  Sheriff  May  Dispossess. 
Who  Are  Bound  by  the  Judgment. 
Whom  the  Sherift"  May  Not  Dispossess. 
Who  May  Be  Removed. 
Notice  of  Pending  Suit. 
Evasion  of  Process. 
Colorable  Possession  of  Land- 
Possession  of  Third  Parties. 
When  Mandamus  Will  Issue. 
Forcible  Entry  against  Sheriff'. 
Must  Show  Right  of  Occupancy. 
When  Sheriff  May  Demand  Indemnity. 
Error  in  Writ. 

§  666.    Requirements  of  the  Writ. —  i'he  writ 

of  restitution  requires  the  officer  to  restore  the  plaintiff 
to  possession  of  the,  premises  described  therein,  and 
usually  to  make  a  money  judL,mient  due  to  plaintiff 
out  of  the  projx'rty  of  the  defendant.  I'nder  it  the 
j)laintiff  is  (•ntitlcd  to  immediate  possession  of  the 
j)remises  and  to  the  mone\'  jiidonient  as  .soon  as  it  can 
])e  made. 

^  667.     Writ    Does   Not   Determine   Right   of 

Property.       I  It-    writ   of  restitution,  ohtainetl    l»y  the 


§ 

666. 

§  667. 

§ 

668. 

§ 

669. 

§ 

67c. 

§  671. 

§ 

672. 

§ 

673- 

§  674. 

§ 

675. 

§ 

676. 

^ 

677. 

§ 

678. 

^ 

679. 

§ 

680. 

WRir    ()!•     KKSTJITIK  i\.  ^   668 

defendants  in  an  action  oi  torcible  entr\  and  detainer, 
does  not  determine  the  right  of  propert\\  ov  the  right 
of  possession.  It  simply  decides  a  restoration  to  im- 
mediate possession,  which  has  been  taken  away  by  an 
illegal  and  unwarranted  ouster,  tending  to  produce  a 
breach   of  the   j)eace. 

§  668.    Whom  the  Sheriff  May  Dispossess.— 

"What  parties  can  be  dispossessed  under  a  writ  q{  ha- 
bere facias  possessionem  under  any  and  all  circum- 
stances, is  not  very  clear  upon  authority.  Some  cases 
go  so  far  as  to  hold  that  all  persons  who  enter  into 
possession  after  the  commencement  of  the  action, 
regardless  of  how  or  by  what  title  they  entered,  must 
go  out,  upon  the  ground  that  otherwise  there  might  be 
no  end  to  litigation;  while  other  cases  seem  to  go  no 
further  than  to  hold  that  the  defendant  and  those 
entering  under  or  succeeding  to  him  in  the  possession 
of  the  land  only  need  go  out,  upon  the  ground  that 
none  are  affected  by  the  judgment  except  parties  and 
privies,  and  that  no  one  can  be  deprived  of  his  prop- 
erty without  first  having  been  allowed  his  day  in  court  ; 
and  we  apprehend,"  say  the  court  in  the  case  of 
Long  z^i".  Neville,  29  Cal.  131,  "that  these  two  princi- 
ples,^which  practically  amount  to  the  same  thing,  to- 
gether furnish  the  true  test  for  the  solution  of  every 
case.  .  .  .  Prima  facie,  all  who  come  into  posses- 
sion after  action  brought  must  go  out,  for  the  presumij- 
tion  is,  nothing  to  the  contrary  appearing,  that  they 
came  in  under  the  defendant." 

In  this  case,  it  was  held  that  it  is  the  duty  of  the 
sheriff,  having  the  writ  of  habere  facias  possessionem, 
to  remove  all  persons  who  came  upon  the  property 
after  the  suit  was  brought,  except  a   person  other  than 


^  669  WRIT  OF  rp:.stitution. 

the  defendant,  who  is  in-  possession  under  a  title  ad- 
verse to  the  defendant ;  and  that  where  ejectment  is 
brought  against  a  tenant  alone,  and  pending  the  action 
the  landlord  dispossesses  him  and  leases  to  another 
tenant  M'ho  has  no  notice  of  the  pendency  of  the 
action,  it  is  the  duty  of  the  sheriff  who  receives  the 
writ  of  habere  facias  possessionem  to  remove  the 
second  tenant. 

Willis  Long  and  W.  B.  Long  commenced  an  action 
of  ejectment  against  two  persons  named  Hull,  who 
were  in  the  actual  possession  of  the  land  at  the  time 
the  action  was  brought.  The  Hulls  were  in  possession 
as  tenants  of  one  Ellis,  who  attempted  to  intervene  by 
petition,  but  the  plaintiffs  demurred,  and  the  demurrer 
was  sustained.  The  Hulls  made  default,  and  judg- 
ment was  entered  against  them,  and  them  only,  for 
the  p.  ssession  of  the  land.  Pending  the  action  of 
ejectment,  Ellis  brought  an  action  against  the  Hulls, 
obtained  judgment  and  dispossessed  the  Hulls.  After- 
wards, Ellis  leased  the  land  to  one  Brown,  who  was  in 
possession  at  the  time  the  sheriff  received  the  writ. 
The  sheriff  refused  to  execute  the  writ  upon  Brown. 
The  Supreme  Court  held  that  Brown  came  in  under 
the  same  title  and  held  the  same  right  to  the  posses- 
sion which  was  held  by  the  Hulls  when  the  action  was 
commenced  against  them,  and  that  the  sheriff  could 
have  lawfully  dispossessed  Brown,  and  having  failed  to 
do  s(^  he  made  himself  and  his  sureties  liable.  {Long 
vs.  Neville,  ante.) 

I  6(h).  Who  Bound  by  Judgment  in  Eject- 
ment. II  a  d(-fendant  in  ejectment  conveys  the  land 
pending  litigation,  antl  the  grantee  enters  upon  the 
l.ind  with  or  wilhoul    notice  of  the   pending   suit,  he  is 


WRIT    ()!•     RKSTITiriON.  ^  67O 

not  only  liable  to  be  dispossessed  by  the  writ  of  resti- 
tution, if  the  plaintiff  obtains  judgment,  but  is  also 
bound  by  the  judg-ment,  as  an  instrument  of  evidence, 
to  the  same  extent  as  it  would  have  been  binding  upon 
his  grantor,  had  no  conveyance  been  made.  (  Watson 
vs.  Dowling,  26  Cat.  12^.) 

§  670.  Whom  the  Sheriff  May  Not  Dispos- 
sess.— A  sheriff  has  no  authority  by  virtue  of  a  writ 
of  restitution  to  remove  from  the  premises  described 
in  the  writ  persons  who  ^were  not  parties  nor  privies  to 
the  judgment  on  which  the  writ  was  issued,  and  did 
not  enter  by  collusion  with  the  defendant  in  the  judg- 
ment pending  the  suit.  ( Tevis  vs.  Ellis,  2^  Cal.  ^i§  ; 
Archbishop  vs.  Shipman,  6g  Cal.  ^86 ;  Irving  vs.  Cun- 
ningham, 7/  Cal.  52. )  Where  the  owner  of  certain 
real  estate,  who  was  not  a  party  in  the  suit,  was 
threatened  by  the  sheriff  with  ejectment  from  his  land, 
it  was  held  that  he  was  not  entitled  to  an  injunction 
against  the  sheriff  The  plaintiff  and  his  tenant  were 
not  only  beyond  the  reach  of  the  writ,  but  were  un- 
affected by  the  judgment  as  an  instrument  of  evidence, 
and  therefore  had  nothing  to  fear  from  either ;  that  if 
the  sheriff  interfered  with  the  plaintiffs  possession  of 
the  lots,  the  writ  would  not  only  fail  as  a  justification, 
but  would  be  pertinent  to  convict  the  sheriff  of  an  act 
of  official  oppression.      (  Tevis  vs.  Ellis,  ante. ) 

In  Watson  vs.  r3owling,  26  Cal.  125,  the  court  held 
that  where  several  persons  are  owners  of  a  tract  of 
land  as  tenants  in  common,  and  the  interest  of  one 
passes  to  a  purchaser  under  execution  sale,  who  brings 
ejectment  against  the  execution  debtor  alone,  and  re- 
covers judgment,  neither  the  other  tenants  in  common 
nor    the    grantees  who  purchase  and  enter    upon   the 


§671  WRIT    OF     RKSTITLTION. 

land  pending  the  suit,  can  be  dispossessed  by  the  sher- 
iff by  virtue  of  the  writ  of  restitution. 

Parties  in  exclusive  possession  of  land,  claiming  ad- 
versely, at  the  commencement  of  an  ejectment  suit  to 
which  they  were  not  made  parties,  are  not  affected  by 
the  judgment  therein.  {McLeran  vs.  McISFamara,  60 
Cal.  610.) 

A  person  in  possession  of  the  demanded  premises  at 
the  time  of  the  commencement  of  the  action  to  recover 
possession,  cannot  be  removed  under  a  writ  issued  on 
a  judgment  in  the  case,  unless  he  is  made  defendant, 
and  judgment  is  rendered  against  him  after  the  court 
acquires  jurisdiction  of  his  person.  [Ford  vs.  Doyle, 
37  Cal.  346.) 

If  neither  the  tenant  nor  his  landlord  are  parties  to 
an  action  of  ejectment,  and  the  landlord  was  in  posses- 
sion when  the  suit  was  commenced,  but  subsequently 
leased  to  the  tenant,  the  tenant  cannot  rightfully  be 
removed  by  a  writ  of  restitution  issued  in  such  action. 
{Calderwood  vs.  Pyser.  ji  Cal.  jjj.) 

One  who,  after  an  action  of  ejectment  has  been  com- 
menced, enters  upon  the  demanded  jjremises,  but  does 
not  enter  under  the  defendant,  or  by  collusion  with  him, 
and  is  not  made  a  ))art\'  to  the  action,  cannot  be  re- 
move;d  b\  virtue  of  a  writ  of  restitution  issued  on  a 
judgment  n-nderexl  in  the  action.  {Mayo  vs.  Sprout, 
4S  Cal.  c)cj.) 

I  67 1      Who  May  Be  Removed.    A  party  and  her 

tenants,  coming  into  possession  of  lands,  after  an  action 
brought  to  recover  possession,  under  a  prior  unrecorded 
4<-'-d  from  two  of  the  def(Midants  in  the  action,  of  which 
plaintiff  h.id  no  notice  when  the  action  was  commenced, 
w<T'     prop<ri\'   dispossessed     under   a    writ    ot    restitu- 


WRIT    OF    RKSrnUTlON.  ^§  672,    673 

tion,  issued  on  a  judgment  lor  plaintiff  in  said  action. 
{Mayne  vs.  /ones,  J4  Cal.  48 j.) 

In  the  case  of  Sampson  vs.  Ohleyer,  22  Cal.  200,  pend- 
ing an  action  of  ejectment  against  a  tenant,  the  latter 
transferred  possession  to  his  landlord,  who  had  actual 
notice  of  and  defended  the  suit,  but  was  not  made  a 
party,  and  plaintiff  recovered  judgment;  it  was  held 
that,  under  the  writ  of  restitution  authorized  by  the 
judgment,  the  landlord  might  be  dispossessed  and  that 
in  ejectment  against  the  occupant  of  the  premises,  a 
judgment  of  recovery  binds  not  only  the  defendant  but 
all  persons  who  receive  possession  of  the  premises  from 
him  with  actual   notice  of  the  pending  suit. 

If  the  plaintiff  in  ejectment  dies  after  a  judgment  in 
his  favor  has  been  rendered,  a  writ  of  restitution  may 
be  issued  on  the  judgment,  at  the  instance  and  for  the 
benefit  of  his  successor  in  interest  in  the  property. 
{Franklin  vs.  Merida,  50  Cal.  28g.) 

Under  a  writ  of  possession  against  the  husband,  his 
wife  should  be  dispossessed,  her  only  holding  being 
such  as  she  had  by  virtue  of  her  marital  relations  with 
the  defendant  in  the  writ.  {Huerstal  vs.  Mtiir,  64  Cal. 
450-) 

§  672.    Notice  of  Pending  Suit.— The  27th  sec 

tion  of  the  Practice  Act  {California.  Sec.  4og  Code 
Civil  Procedure^,  relating  to  the  filing  of  lis  pendens, 
does  not  apply  to  actions  of  ejectment,  but  to  proceed- 
ings in  chancery,  the  purpo.se  of  which  is  to  turn  equit- 
able estates  into  legal  ones,  or  to  enforce  liens  upon 
legal  estates.      (  Watson  vs.  Dowling,  26  Cal.  T2^.) 

§  673.    An  Evasion  of  Process.    If  the  defend 

ant,  pending  an  action  against  him  to  recover  posses- 


§§  674-676  WRIT    OF    RESTITUTION. 

sion  of  land,  colludes  with  another  person  to  obtain 
judgment  against  him  for  possession,  and  to  be  placed 
in  possession  by  a  writ  of  restitution,  such  other  person 
must  go  out  under  a  writ  of  possession  against  the  de- 
fendant. He  will  not  be  protected  by  his  judgment,  if 
it  was  collusively  obtained.  (  Wethei'bee  vs.  Dunn,  j6 
Cal.  147.) 

§  674.    Colorable  Possession  of  Land.— Where 

a  defendant  in  ejectment  has  taken  possession  of  land 
in  collusion  with  the  plaintiff,  for  no  other  purpose  than 
to  afford  such  plaintiff  a  pretext  to  take  possession  un- 
der a  writ  of  restitution,  such  pretended  possession  will 
be  disregarded.  [South  Beach  L.  Association  vs. 
Christy,  41  Cal.  ^o/.) 

§  675.    Possession  of   Third  Parties.— If  the 

plaintiff  obtains  judgment  in  an  action  of  forcible  entry 
and  detainer,  but  does  not  obtain  possession  of  the 
property,  and  a  writ  of  restitution  is  not  issued,  and 
the  judgment  is  afterwards  reversed,  and  the  action  dis- 
missed, and  during  the  pendency  of  the  action  third 
parties  obtain  possession  of  the  property  by  collusion 
with  a  servant  of  the  defendant,  the  defendant  is  not 
entitled  to  a  writ  to  be  restored  to  possession  as  against 
these  third  [jarties.  [Bowers  vs.  Cherokee  Bob,  46  Cal. 
280.) 

I  676.     When   Mandamus  Will  Issue.     In  an 

action  for  a  forcibU;  and  unlawful  entry  and  detainer  of 
a  mine,  against  a  corjjoration  and  C.  and  V.,  the  jury 
n-turiK-d  a  verdict  of  guilty  as  to  C.  and  V.,  and  not 
guilty  as  to  the  corporation  :  Held,  that  such  a  verdict 
is  cofirlusixc  that   the   plaintiff  was   peacc^ably  in  actual 


WRIT    OF    RESTITUTION.  §  67/ 

possession  of  the  premises  at  tlie  time  of  the  entry; 
that  unlawful  and  forcible  entry  on  his  possession  was 
made  by  the  defendants,  C.  and  V.,  and  that  the  corpo- 
ration did  not  participate  in  the  trespass.  The  peace- 
able and  actual  possession  of  the  plaintiff  is  incom- 
patible with  the  lawful  possession  of  another;  and  such 
a  verdict  is  conclusive  against  the  possession  of  the 
corporation.      {Fremont  vs.  Crippen,  lo  Cal.  211.) 

Where  a  writ  of  restitution  has  been  aw^arded  in  such 
a  case,  and  the  sheriff  refuses  to  execute  the  same,  on 
the  ground  that  the  mine  is  in  the  possession  of  certain 
persons  not  parties  to  the  suit,  who  claim  to  hold  under 
the  corporation,  the  court  will  award  a  peremptory 
mandamtis  against  the  sheriff  to  compel  him  to  execute 
the  writ. 

To  supersede  the  remedy  by  mandamus,  a  party 
must  not  only  have  a  specific  adequate  legal  remedy, 
but  one  competent  to  afford  relief  upon  the  very  sub- 
ject matter  of  his  application. 

Neither  a  remedy  by  criminal  prosecution,  nor  by 
action  on  the  case  for  neglect  of  duty,  will  supersede 
that  by  mandamus,  since  it  cannot  compel  a  specific  act 
to  be  done,  and  is,  therefore,  not  equally  convenient, 
beneficial  and  effectual.  [Fre^nont  vs.  Crippen,  10 
Cal.  212.) 

§  677.    When    Forcible    Entry  Will  Not  Lie 

against  Sheriff. — An  action  under  the  Act  concern- 
ing forcible  entries  and  unlawful  detainers  will  not  lie 
against  a  party  who  has  been  put  in  possession  by  a 
sheriff  in  good  faith,  by  virtue  of  a  writ  of  restitution, 
even  if  the  person  turned  out,  and  who  brings  the 
action,  was  one  whom  the  officer  could  not  lawfully 
dispossess  by  virtue  of  the  writ.     {Janson  vs.  Brooks, 


§§  678-680  WRIT    OF    KESTl'l  UTIOX. 

2g  Cal.  21^.)  Nor  is  the  sheriff  LCuik\  of  a  forcible 
entry,  if  acting-  in  good  faith  therein. 

§  678.     Must  Show  Right  of  Occupancy.    A 

person  in  possession  of  land  where  a  writ  of  restitution 
is  served,  is  presumed  to  hold  under  the  defendant  in 
the  action,  and  to  avoid  being  dispossessed  by  the  writ, 
must  show  affirmatively  that  he  holds  by  a  right  inde- 
pendent and  paramount.  {Sampson  vs.  Ohleyer,  22 
Cal.  200.) 

^  679.     When  Sheriff  May  Demand  Indemnity 

Bond. — When  a  sheriff  goes  to  execute  a  writ  of  pos- 
session issued  on  a  judgment  in  an  action  to  recover 
land,  if  he  finds  other  parties  in  possession  than  those 
named  in  the  complaint,  who  claim  that  they  are  right- 
fully in  possession,  not  in  privity  with  the  defendants, 
and  the  circumstances  are  such  that  a  reasonable  doubt 
exists  whether  the  sheriff  has  a  right  to  turn  them  out, 
the  sheriff  may  demand  indemnity,  and,  unless  it  is 
given,  may  refuse  to  execute  the  writ.  This  is  the  law, 
even  if  the  jjremises  are  specifically  described  in  the 
writ.     Lon£-  vs.  Neville,  j6  Cal.  455. 

If  a  sheriff  has  wrongfully  turned  a  person  out  of 
possession  of  land  under  a  writ  of  restitution,  he  will 
be  restored  by  the  court  to  the  possession,  on  motion 
made  for  that  purpose.  [S.  B.  Land  Asso.  vs.  Christy, 
41  Cal.  so/ :  Mayo  vs.  Sprout,  4^  ^^^-  99-) 

§  680.  Error  in  Writ.  In  an  action  of  ejectment, 
if  the  ex(tcuti()n  correctly  refers  to  a  judgment,  in  such 
manner  as  to  icUmtify  it,  it  is  sufficient  to  justify  the  sher- 
iff in  <Miforcing  it,  ("ven  if  it  contains  an  error  in  reciting 
the  day  on  which  the  judgment  had  been  rendered. 
{Franklin  7's.  Mcrida,  5c;  Cal.  28g.) 


CHAPTER    XXIV. 


ARRESTS. 

§  68 1.  Duty  to  Arrest  Offenders. 

§  682.  Arrest  without  Warrant. 

§  683.  When  Warrant  Must  Be  Shown. 

§  684.  Officer  May  Summon  Aid — Posse  Comitatus. 

§  685.  Refusing  to  Aid  Officers. 

§  686.  How  Arrest  Is  Made. 

§  687.  When  Force  May  Be  Used. 

§  688.  When  Doors  May  Be  Broken. 

§  689.  Taking  Weapons  from  Prisoners. 

§  690.  When  Arrest  May  Be  Made  at  Night. 

§  691.  When  Arrest  Cannot  Be  Made  at  Night. 

§  692.  Nighttime  Defined. 

§  693.  Name  of  Defendant  in  Warrant. 

§  694.  How  Executed  in  Another  County. 

§  695.  Rescuing  Prisoners. 

§  696.  Taking  Prisoner  before  Magistrate. 

§  697.  Liability  for  Delay. 

§  698.  Proceedings  before  Magistrate. 

§  699.  Offense  Triable  in  Another  County. 

§  700.  Retaking  after  Escape. 

§  701.  Jurisdiction  of  Offenses. 

§  702.  Arrest  in  Civil  Actions. 

§  703.  Duty  on  Arresting  Insane  Person. 

§  704.  Arrest  for  Contempt  of  Court. 

§  705.  Arrest  by  Telegraph. 

§  706.  Electors  Privileged  from  Arrest — When. 

§  707.  Legislature — Exemption  from  Arrest. 

§  708.  Militia  Exemptions  from  Arrest. 


28 


§§  681-683  ARRESTS. 

§  709.  Arrest  for  Fraud  and  Torts,  etc. 

§  710.  Prisoners  Brought  from  Other  Counties  as  Witnesses. 

§  711.  When  Prisoner  May  Not  Be  Handcuffed. 

§  712.  Service  of  Bench  Warrant. 

§  713.  Making  Arrests,  etc.,  without  Authority. 

§  714.  Refusing  to  Arrest  Criminals. 

§  715.  Justifiable  Homicide  in  Making  Arrest. 

§  681.    Duty  to  Arrest  Offenders. — It  is  the  duty 

of  the  sheriff  to  arrest  and  take  before  the  nearest 
magistrate,  for  examination,  all  persons  who  attempt 
to  commit  or  who  have  committed  a  public  offense. 
{^California.  Sec.  gj  Co.  Govt.  Bill,  Stafs.  i8gj,p.  jy2.) 
Washington.      Sec.  20'j  Penal  Code. 

\  682.    Arrest  without  Warrant. — A  sheriff  or 

anv  other  peace  officer  may,  with  or  without  a  warrant, 
arrest  a  person  under  the  following  conditions : — 

"  I.  For  a  public  offense  committed  or  attempted  in 
his  presence. 

"  2.  When  a  person  arrested  has  committed  a  felony 
although  not  in  his  presence. 

"3.  When  a  felony  has,  in  fact,  been  committed, 
and  he  has  a  reasonable  cause  for  believing  the  person 
arrested  to  have  committed  it. 

"4.  ( )n  a  charge  made,  upon  a  reasonable  cause,  of 
the  commission  of  a  felony  by  the  party  arrested. 

"5.  At  night,  when  there  is  reasonable  cause  to 
believe  thai  he  has  committed  a  felony."  {California. 
Sec.  8j6  Penal  Code.) 

Nevada.     Sec.  401  j  General  Statutes,  188^.  ^^ 

( 'tail.      Sees.  4854,  4856  Compiled  Laws,  1888.  " 

^  OS 3.     When   Warrant    Must  Be   Shown.— If 

ill'-  jxrson  making  the   arrest   is  acting   under  the  au- 


ARRESTS.  §§  684-686 

thority  of  a  warrant,  he  must  show  the  warrant,  if 
required.      {California.     Sec.  842  Penal  Code.) 

Montana.     Sec.  6^,  p.  41  y,  Compiled  Statutes,  i88y. 

Nevada.     Sec.  401  j  General  StattUes,  1885. 

Utah.     Sec.  4860  Compiled  Lazvs,  1888. 

§  684.    Officer  Making  Arrest  May  Summon 

Aid — Posse  ComitatUS. — An  officer,  or  any  person 
making  an  arrest,  may  orally  summon  as  many  per- 
sons as  he  deems  necessary  to  aid  him  therein.  [Cali- 
fornia.    Sec.  1^0  Penal  Code.) 

Colorado.     Sec.  8^6  Mills  Ann.  Statutes,  i8gi. 

Idaho.     Sec.  J400  Revised  Statutes,  188 j. 

Montana.     Sec.  yj,  p.  418,  Compiled  Statutes,  i88y. 

Nevada.     Sec.  40og  General  Statutes,  188^. 

Oregon.     Sees,  ggj,  1568,  1840  Hill's  Codes,   i8g2. 

Utah.     Sec.  485'j  Compiled  Laws,  1888. 

§  685.    Refusing  to  Aid  Officers. — "  Every  male 

person  above  eighteen  years  of  age  who  neglects  or 
refuses  to  join  the  posse  comitatus,  or  power  of  the 
county,  in  arresting  any  person,  or  in  retaking  an 
€scape,  or  to  prevent  any  breach  of  the  peace,  or  the 
commission  of  any  criminal  offense,  being  thereto  law- 
fully required  by  any  sheriff,  deputy  sheriff,  coroner, 
constable,  judge  or  justice  of  the  peace  or  other  officer 
concerned  in  the  administration  of  justice,  is  punish- 
able by  fine  of  not  less  than  fifty  nor  more  than  one 
thousand  dollars."     [California.     Sec.  i ^o  Penal  Code.) 

Colorado.     Sec.  ij66  Mills  Ann.  Statutes,  i8gi . 

Oregon.     Sees.  gg8,  1840  Hills  Codes,  i8g2. 

Washi^igton.     Sec:  180  Penal  Code. 

\  686.      How  Arrest  Is  Made. — "The  person  mak- 
ing the  arrest  must   inform   the  person   to  be  arrested 


§$687-689  ARRESTS. 

of  the  intention  to  arrest  him,  of  the  cause  of  the 
arrest  and  the  authority  to  make  it,  except  when  the 
person  to  be  arrested  is  actually  engaged  in  the  com- 
mission of  or  an  attempt  to  commit  an  offense,  or  is 
pursued  immediately  after  its  commission,  or  after  an 
escape."     [California.     Sec.  841  Penal  Code.) 

Montana.  Sees.  6j~4,  712,  pp.  41J-8,  Covipiled 
Statutes,  iSSy. 

JVevada.     Sees.  4010-ij  General  Stattttes,  i88§. 

Utah.     Sees.  48^2-j  Compiled  Laws,  1888. 

Washington.     Sees.  i2^g-6o  II  Hills  Codes,   i8gi . 

\  687.    When  Force  May  Be  Used.  -' When  the 

arrest  is  being  made  by  an  officer  under  the  authority 
of  a  warrant,  after  information  of  the  intention  to 
make  the  arrest,  if  the  person  to  be  arrested  either 
flees  or  forcibly  resists,  the  officer  may  use  all  neces- 
sary means  to  effect  the  arrest."  [California.  See.  84J 
Penal  Code.) 

Nevada.     See.  4014  General  Statutes,  i88§. 

§  688.    When   Doors   May  Be   Broken.—  To 

make  the  arrest,  a  private  person,  if  the  offense  he.  a 
felony,  and  in  all  cases  a  peace  officer,  may  break  open 
the  door  or  window  of  the  house  in  which  the  person 
to  be  arrested  is,  or  in  which  they  have  reasonable 
grounds  for  believing  him  to  be,  after  having  demanded 
admittance  and  explained  the  purpose  for  which  admit- 
tance is  desired."     [California.     See.  844  Penal  Code.) 

Nevada.    Sees.  4015  6,  4018,  4028  Gen.  Stats.,  /88^. 

Utah.     Sees.  4862  j  Compiled  Laws,  1888. 

Washington.     See.  /jyg  II  Hills  Codes,  i8gi . 

\  689.    Taking   Weapons    from    Prisoners. 

"Any  person  makiiiL;  an  arrest  ma\-  take  from  the  per- 


ARRi:srs.  §§  690-694 

son  arrested  all  offensive  weapons  which  he  may  have 
about  his  person,  and  must  deliver  them  to  the  magis- 
trate before  whom  he  is  taken."  {California.  Sec. 
S^f:6  Penal  Code.) 

%  690.    When  Arrest  May  Be  Made  at  Night — 

"If  the  offense  charged  is  a  felony,  the  arrest  may  be 
made  on  any  day,  and  any  time  of  the  day  or  night." 
{^California.     Sec.  840  Penal  Code.) 

Nevada.     Sees.  4010,  40ig  General  Statutes,  1885. 

Utah.     Sees.  48^4,  48^8  Compiled  Latvs,  1888. 

§  691.     When  Arrest  Cannot  Be  Made  at  Night. 

— "When  the  offense  charged  is  a  misdemeanor,  the 
arrest  cannot  be  made  at  night  unless  upon  the  direction 
of  the  magistrate,  indorsed  upon  the  warrant.  '  {Cal- 
ifornia.    Sec.  840  Penal  Code.) 

Nevada.     Sec.  4010  General  Statutes,  188^. 

Utah.     Sec.  4858  Compiled  Lazvs,  1888. 

\  692.  Nighttime  Defined. — The  phrase  "night- 
time," as  used  herein,  means  the  period  between  sun- 
set and  sunrise.  {California.  Sec.  J260  Political 
Code. ) 

§  693.    Name  of  Defendant  in  Warrant.— "  The 

warrant  must  specify  the  name  of  the  defendant,  or, 
if  it  is  unknown  to  the  magistrate,  the  defendant  may 
be  designated  therein  by  any  name."  {California. 
Sec.  81^  Penal  Code.) 

\  694.    How  Executed  in  Another  County.—^ 

"If  the  defendant  is  in  another  county  than  that  in 
which  the  warrant  is  issued,  it  mav  be  served  therein 
ujX)n    the    written    direction    of   a    magistrate    of   the 


§§  695.    696  ARRESTS. 

county  in  which  it  is  to  be  served,  indorsed  upon  the 
warrant,  signed  by  him,  with  his  name  of  office,  and 
dated  at  the  county,  city  or  town  where  it  is  made,  to 
the  following  effect :    '  This  warrant  may  be  executed 

in  the  county   of  '   (naming  the  county)."     Such 

indorsement  "  cannot,  however,  be  made,  unless  the 
warrant  be  accompanied  with  a  certificate  of  the  clerk 
of  the  county  where  it  was  issued,  under  seal,  as  to  the 
official  character  of  the  magistrate  ;  or  unless  upon  the 
oath  of  a  credible  witness,  in  writing,  indorsed  on  or 
annexed  to  the  warrant,  proving  the  handwriting  of 
the  magistrate  by  whom  it  was  issued."  {California, 
Sees.  8ig,  820  Penal  Code.) 

§  695.    Rescuing  Prisoners. — "  Every  person  who- 

rescues  or  attempts  to  rescue,  or  aids  another  person  in 
rescuing  or  attempting  to  rescue,  any  prisoner  from  any 
officer  or  person  having  him  in  lawful  custody,  is  pun- 
ishable under  Sec.  loi  of  the  Penal  Code  of  California.. 
But  one  who,  without  violence,  assists  a  person  who  is 
confined  without  authority  or  process  of  law  to  depart 
from  his  place  of  confinement,  is  not  guilty  of  the 
crime  of  assisting  a  prisoner  to  escape."  {People  vs. 
Ah  Teung,  g2  Cal.  421.)     See  also: 

Colorado.     Sec.  1284  Mills  Ami.  Statutes.  i8gi. 

Utah.     Sec.  44 n  Compiled  Laws,  188S. 

\  696.    Taking  Prisoner  before  Magistrate. — 

"  If  the  oHense  charged  is  a  f(.'lony,  the  officer  making 
the  arrest  must  take  the  defendant  before  the  magis- 
trate who  issued  th<'  warrant,  or  some  other  magistrate 
of  the  same  county."  {California.  Sec.  S21  Penal 
Code. ) 

"If  th''   offense   (■h,irL'<'(l    is  a  misdemeanor,  an*?  the- 


ARRESTS.  ^697 

defendant  is  arrested  in  another  county,  the  officer 
must,  upon  being  required  by  the  defendant,  take  him 
before  a  magistrate  in  that  county,  who  must  admit  the 
defendant  to  bail,  and  take  bail  from  him  accordingly." 
{California.     Sec.  822  Penal  Code.) 

"On  taking  the  bail,  the  magistrate  must  certify  that 
fact  on  the  warrant,  and  deliver  the  warrant  and  under- 
taking of  bail  to  the  officer  having  charge  of  the  de- 
fendant. The  officer  must  then  discharofe  the  defend- 
ant  from  arrest,  and  must,  without  delay,  deliver  the 
warrant  and  undertaking  to  the  clerk  of  the  court  at 
which  the  defendant  is  required  to  appear."  {Califor- 
nia.    Sec.  82 J  Penal  Code. ) 

"  If,  on  the  admission  of  the  defendant  to  bail,  the  bail 
is  not  forthwith  griven,  the  officer  must  take  the  defend- 
ant  before  the  magistrate  who  issued  the  warrant,  or  in 
case  of  his  absence  or  inability  to  act,  before  the  nearest 
or  most  accessible  magistrate  in  the  same  county,  and 
must  at  the  same  time  deliver  to  the  magistrate  the 
warrant,  with  his  return  thereon  indorsed  and  signed 
by  him."  The  defendant  must  in  all  cases  be  taken  be- 
fore the  magistrate  without  unnecessary  delay,  {Cali- 
fornia.    Sees.  824-^  Penal  Code.) 

Montana.  Sees.  6g,  8^,  pp.  418,  420,  Compiled 
Statutes,  i88j. 

Nevada.     Sees,  jggj-4006  General  Statittes,  i8S§. 

Utah.     Sees.  486^-y  Compiled  Lazus,  1888. 

I  69;.  Liability  for  Delay. — "Every  public  officer 
or  other  person,  having  arrested  a  person  on  a  criminal 
charge,  who  willfully  delays  to  take  such  person  before 
a  magistrate  having  jurisdiction,  to  take  his  examina- 
tion, is  guilty  of  a  misdemeanor."  {California.  See. 
14^  Penal  Code.) 

Utah.     Sec.  44 jj  Compiled  Lazus,  /c 


§§  698-700  ARRESTS. 

§  698.    Proceedings  before    Magistrate.    "If 

the  defendant  is  brouo^ht  before  a  maoristrate  other  than 
the  one  who  issued  the  warrant,  the  depositions  on 
which  the  warrant  was  granted  must  be  sent  to  that 
magistrate,  or,  if  they  cannot  be  procured,  the  prosecutor 
and  his  witnesses  must  be  summoned  to  give  their  tes- 
timony anew."     (California.     Sec.  S26  Penal  Code.) 

Nevada.     Sec.  400J  General  Statutes,  188^. 

Utah.     Sec.  48^2  Compiled  Laws,  1888. 

\  699.    Offense  Triable  in  Another  County.— 

^'  When  an  information  is  laid  before  a  magistrate,  of  the 
commission  of  a  public  offense,  triable  in  another  county 
of  the  State,  but  showing  that  the  defendant  is  in  the 
county  where  the  information  is  laid,  the  warrant  must 
require  the  defendant  to  be  taken  before  the  nearest  or 
most  accessible  magistrate  of  the  county  in  which  the 
offense  is  triable,  and  the  depositions  of  the  informant 
or  prosecutor,  and  of  the  witnesses  who  may  have  been 
produced,  must  be  delivered  by  the  magistrate  to  the 
officer  to  whom  the  warrant  is  delivered."  The  officer 
must  then  take  the  defendant  and  the  papers  to  such 
magistrate,  with  his  return  indorsed  on  the  warrant.  If 
the  offense  in  such  case  Is  a  misdemeanor,  the  officer 
must,  if  the  defendant  require  it,  take  him  before  the 
magistrate  of  the  count\'  in  which  the  warrant  was 
issued,  who  must  admit  him  to  bail.  [California. 
Sees.  82"/  g  Penal  Code. ) 

Nevada.      Sec.  4004  Ccncral  S/atittcs,  188^. 

%  700.  Retaking  after  Escape.  "  if  a  person  ar- 
rested escaix-,  or  is  i-csiiicd,  the  otticci'  ina\'  immediatel)' 
]Hirsiic  ;iM(l  i'ct.ak<-  him  at  aii\  lime  ami  an_\-  i)'acc  within 
the  Slate.        i()    I'ciakc  an  cscapi'd    prisoner,  the  officer 


ARRKSTS.  §  70  r 

pursuing  ma\-  break  open  an  outer  or  inner  door  or 
window,  if,  after  notice  of  his  intention,  he  is  refused 
admittance."  {California.  Sees.  8^4^^  Penal  Code.) 
If  the  prisoner  escape  into  another  State,  the  officer 
cannot  retake  him  except  upon  a  requisition  from  the 
governor  of  the  State  from  which  he  escaped. 

Montana.     Sec.  J4,  p.  418,  Compiled  Stattites,  188^. 

N'evada.     Sees.  402 j-8  General  Statutes,  1885. 

Utah.     Sees.  48/0-1  Compiled  Laws,  1888. 

§  701.  Jurisdiction  of  Offenses. — When  a  pub- 
lic offense  is  committed  on  the  boundary  of  two  or  more 
counties  in  CaHfornia  or  within  five  hundred  yards 
thereof,  the  juriscHction  is  in  either  county.  When  an 
offense  is  committed  "on  board  a  vessel  navigating  a 
river,  bay,  slough,  lake  or  canal,  or  lying  therein,  in 
the  prosecution  of  her  voyage,  the  jurisdiction  is  in  any 
county  through  which  the  vessel  is  navigated  in  the 
course  of  her  voyage,  or  in  the  county  where  the  voy- 
age terminates;  and  when  the  offense  is  committed  in 
this  State,  on  a  railroad  train  or  car  prosecuting  its  trip, 
the  jurisdiction  is  in  any  county  through  which  the  train 
or  car  passes  in  the  course  of  her  trip,  or  in  the  county 
where  the  trip  terminates.  When  the  offense,  either  of 
bigamy  or  incest,  is  committed  in  one  county  and  the 
defendant  is  apprehended  in  another,  the  jurisdiction  is 
in  either  county.  When  property  taken  in  one  county 
by  burglary,  robbery,  larceny  or  embezzlement,  has 
been  brought  into  another,  the  jurisdiction  of  the  offense 
is  in  either  county;  but  if  at  any  time  before  the  convic- 
tion of  the  defendant  in  the  latter,  he  is  indicted  in  the 
former  county,  the  sheriff  of  the  latter  county  must, 
upon  demand,  deliver  him  to  the  former."  The  juris- 
diction on  violation  of  the  law  relating  to  prize-fights, 


§§   702-705  ARRESTS. 

is  in  any  county  in  which  any  act  is  clone  toward  the 
commission  of  the  offense,  into,  out  of  or  througfh 
which  the  offender  passed  to  commit  the  offense,  or 
where  the  offender  is  arrested.  (California.  Sees.  y82y 
7^3^  7^5^  7^^^  795  Penal  Code.) 

§  702.    Arrest  in  Civil  Actions. — Arrest  in  civil 

actions  is  treated  in  this  work  in  the  chapter  on  "Arrest 
and  Bail,"  ante. 

I  703.    Duty  on  Arresting  Insane  Person. — 

It  is  the  duty  of  the  sheriff,  immediately  upon  arrest- 
ing any  person  charged  with  being  insane,  to  notify 
the  district  attorney  of  the  county  in  which  the  arrest 
is  made.      {California.     Statutes  i88g,  p.  J2g.) 

I  704.    Arrest  for  Contempt  of  Court.— W  hen 

a  party  to  a  divorce  case  is  ordered  imprisoned  for  con- 
tempt in  failing  to  pay  alimony,  the  sheriff  cannot 
place  the  person  under  arrest  until  the  commitment 
has  been  placed   in  his  hands. 

^  705.    Arrest  by  Telegraph. — "A  justice  of  the 

Supreme  Court,  or  a  judge  of  a  Superior  Court,  may, 
by  an  indorsement  under  his  hand  upon  a  warrant  of 
arrest,  authorize  the  service  thereof  by  telegraph,  and 
thereafter  a  telegraphic  copy  of  such  warrant  may  be 
s(*nt  by  telegraph  to  one  or  more  peace  officers,  and 
such  copy  is  as  effectual  in  the  hands  of  any  officer, 
and  he  must  proceed  in  the  same  manner  under  it,  as 
though  he  h(!kl  an  original  warrant  issued  l^y  the  mag- 
istrate  making  th('  indorsement." 

"  I',v(-r\'  ()ffic<'r  causing  telegraj)hic  copies  of  warrants 
to  be  sciU.  must   ccrtifv  as  correct,  and    file  in  the   tele- 


ARRESTS.  §§  706-708 

graph  office  from  which  such  copies  are  sent,  a  copy  of 
the  warrant  and  indorsement  thereon,  and  must  return 
the  original  with  a  statement  of  his  action  thereunder." 
{California.     Sees.  8^0-1  Penal  Code.) 

Nevada.     Sec.  gjy  General  Stahites,  1885. 

Utah.     Sec.  4868  Compiled  Laivs,  1888. 

§  706.  Electors— When  Privileged  from  Ar- 
rest.— "Electors  are  privileged  from  arrest,  except 
from  an  indictable  offense,  during  their  attendance  on 
the  election,  and  in  going  to  and  returning  from  the 
same."  {California.  Sec.  io6g  Political  Code.)  See 
also  Art.  II,  Sec.  2,  Constitution;  see  also  Sec.  159, 
ante. 

Colo7'ado.  Sec.  40 y,  p.  28 j,  I  Mills  Ann.  Statutes, 
i8gi. 

I  707.    Legislature— Exemption  from  Arrest. 

— "Members  of  the  Leo-islature  shall,  in  all  cases  ex- 
cept  treason,  felony  and  breach  of  the  peace,  be  priv- 
ileged from  arrest,  and  they  shall  not  be  subject  to  any 
civil  process  during  the  session  of  the  Legislature,  nor 
for  fifteen  days  next  before  the  commencement  and 
after  the  termination  of  each  session."  {California. 
Art.  IV,  Sec.  2  Constitution.)  See  also  Sec.  159,  ante. 
Colorado.  Sec.  jjg,  p.  226,  I  Mills  Ann.  Statutes, 
i8gi. 

§  708.    Militia  Exemptions  from  Arrest.—  No 

person  belonging  to  the  military  forces  is  subject  to 
arrest,  on  civil  process,  -while  going  to,  remaining  at 
or  returning  from  any  place  at  which  he  may  be  re- 
quired to  attend  for  military  duty."  {California.  Sec. 
2021   Political  Code.)       "No  person  shall   be  impris- 


oned  for  a  militia  fine  in  time  of  peace."     {California, 

Art.  I,  Sec.  i^,  Constitution.)     See  also  Sec.  i^g,ante. 

ColoradG.     Sec.  jiiS  Mills  Ann.  Statutes,  i8gr. 

\  708a.  Exemption  of  Witnesses  from  Ar- 
rest.— "  Every  person  who  has  been,  in  good  faith, 
served  with  a  subpoena  to  attend  as  a  witness  before  a 
court,  judge,  commissioner,  referee  or  other  person,  in 
a  case  where  the  disobedience  of  the  witness  may  be 
punished  as  a  contempt,  is  exonerated  from  arrest  in  a 
civil  action  while  going  to  the  place  of  attendance, 
necessarily  remaining  there  and  returning  therefrom." 
{California.  Sec.  206"/  Code  Civil  Procedure.)  See 
also  Sec.  159,  ante. 

\  709.    Arrest   for  Fraud    and  Torts,  Etc.— 

"  No  person  can  be  arrested  for  debt  in  any  civil  action, 
on  mesne  or  final  process,  except  in  cases  of  fraud,  nor 
in  civil  actions  for  torts,  except  in  cases  of  willful  in- 
jury to  persons  or  property."  [California.  Art.  /, 
Sec.   i^,   Constitution. ) 

\  -lo.    Prisoners  Brought  from  Other  Counties 

as  Witnesses.  In  California,  when  it  is  necessary  to 
have  a  person  imprisoned  in  the  State  prison  brought 
before  any  court,  or  a  person  imprisoned  in  a  county 
jail  brought  before  a  court  sitting  in  another  county,  an 
order  for  that  purpose  may  be  made  by  the  court  and 
<'xecuted  by  the  sheriff  of  the  county  where  it  is  made; 
or  hisdcpositioii  maybe  taken.  (Sees,  /jjj,  ij^6  Penal 
Code. ) 


\    - 


711.     When   Prisoner    May   Not  Be    Hand 

cuffed.      I^)\    iIt'  cominoii  law,  a  jirisoncr  is  entitled  to 
appear  foi"  trial,  iipoi)    his   own    |)l(;a  of    not  guilty,  free 


ARRKSrs.  ^^  712     714 

from  all  manner  of  shackles  or  bonds,  unless  there  is 
danger  of  his  escape.      {People  vs.  Harringloii,  42  Cal. 

1(^5-) 
§  712.    Service  of  Bench  Warrant. — The  bench 

warrant,  for  the  arrest  of  a  person  under  indictment  or 
presentment,  may  be  served  in  any  county,  and  need 
not  be  indorsed  by  a  magistrate  of  that  county.  When 
the  offense  is  not  punishable  with  death,  the  officer 
must,  if  required,  take  the  defendant  before  a  magis- 
trate in  the  county  in  which  it  is  issued,  or  in  which  he 
is  arrested,  for  the  purpose  of  giving  bail.  But  if  the 
offense  is  punishable  with  death,  the  officer  must 
deliver  him  into  custody,  according  to  the  command  of 
the  bench  warrant.  {California.  Sees,  gj^-6,  gyg-g86, 
I ig5-~gg  Penal  Code.) 

For  arrest  after  presentment  in  California,  see  Sees. 
935-6.  979-986  Penal  Code  ;  and  for  arrest  after  judg- 
ment. .Sees.  I  197-9  Penal  Code. 

§  7 1 3.  Making  Arrests,  etc.,  without  Author- 
ity.-— ■'  Every  public  officer,  or  person  pretending  to  be 
a  public  officer,  who,  under  the  pretense  or  color  of 
any  process  or  other  legal  authority,  arrests  any  person 
or  detains  him  against  his  will,  or  seizes  or  levies  upon 
any  property,  or  dispossesses  anyone  of  any  lands  or 
tenements,  without  a  regular  process  or  other  lawful 
authority  therefor,  is  guilty  of  a  misdemeanor."  {Cali- 
fornia.    See.  1^6  Penal  Code.) 

§  714.    Refusing  to  Arrest  Criminals. — "  Every 

sheriff,  coroner,  keeper  of  a  jail,  constable  or  other 
peace  officer,  who  willfully  refuses  to  receive  or  arrest 
any  person  charged  with  a  criminal  offense,  is  punish- 


§7^5  ARRESTS. 

able  by  fine  not  exceeding  $5,000,  and  imprisonment 
in  the  county  jail  not  exceeding  five  years."  {Califor- 
nia.    Sec.  1^2  Penal  Code.) 

An  officer,  nevertheless,  should  be  guarded  as  to 
receiving  persons  as  prisoners  without  a  warrant  or 
commitment. 

Colorado.     Sec.  I2g2  Mills  Ann.  Statutes,  i8gi. 

A^evada.     Sec.  1^02  General  Statutes,  188^. 

Utah.     Sec.  44^2  Compiled  Laws,  1888. 

Washington.     Sec.  181  Penal  Code. 

§  715.  Homicide  Justifiable  in  Making  Ar- 
rest.— Homicide  is  justifiable  when  committed  by 
public  officers  and  those  acting  by  their  command,  in 
their  aid  and  assistance,  when  necessarily  committed  in 
retaking  felons  who  have  been  rescued  or  have  escaped, 
or  when  necessarily  committed  in  arresting  persons 
charged  with  felony,  and  who  are  fleeing  from  justice 
or  resisting  such  arrest.  {California.  Sec.  ig6  Penal 
Code.) 

Colorado.     Sec.  i i8g  Mills  Ann.  Statutes,  i8gi. 


CHAPTER  XXV. 


HABEAS   CORPUS. 


§ 

716. 

§ 

717- 

^ 

718. 

§ 

719- 

§ 

720. 

§ 

720a. 

§ 

721. 

§ 

722. 

§ 

723- 

Receipt  of  Writ. 

Service  of  the  Writ. 

Manner  of  Service. 

The  Return. 

Certificate  of  Service  by  Sheriff. 

Prisoner  Held  by  United  States  Court. 

Warrant  May  Issue  Instead  of  Writ. 

Service  on  Holidays. 

No  Fees  Chargeable. 

§  716.  Receipt  of  Writ. —  Upon  receipt  by  the 
sheriff  of  a  writ  of  habeas  co7'-pus  to  be  served  by  him, 
and  directed  to  another  person,  the  officer  should  in- 
dorse upon  it  the  time  of  its  reception,  and  make  and 
retain  a  copy  of  the  writ.  Under  the  California  prac- 
tice, if  it  is  directed  to  the  sheriff  or  other  ministerial 
officer  of  the  court  out  of  which  it  issues,  it  must  be 
delivered  by  the  clerk  to  such  officer  without  delay,  as 
other  writs  are  delivered  for  service ;  if  it  is  directed  to 
any  other  person,  it  must  be  delivered  to  the  sheriff  for 
service.     {California.     Sec.  1 4^8  Penal  Code.) 

§  717.    Service  of  the  Writ. — If  the  writ  be 

placed    in  the    hands  of  the  sheriff   for  service   upon 
another  person,  it  must  be  by  him  "served   upon  such 


I   yiS  HABEAS    CORPUS. 

person  by  delivering^  the  same  to  him  without  dela\". 
If  the  person  to  whom  the  writ  is  directed  cannot  be 
found,  or  refuses  admittance  to  th(;  officer  or  person 
serving  or  dehvering  such  writ,  it  may  be  served  or 
delivered  by  leaving  it  at  the  residence  of  the  person 
to  whom  it  is  directed,  or  by  affixing  it  to  some  con- 
spicuous place  on  the  outside  either  of  his  dwelling 
house  or  of  the  place  where  the  party  is  confined  or 
under  restraint."  {California.  Sec.  14J8  Penal  Code.) 
See  also  the  next  Section.     Compare : 

Arizona.     Sees.  2260-64  Revised  Statutes,  i88j. 

Colorado.     Sec.  i6og  General  Statutes,  ^88j. 

Idaho.     Sees.  8^44-^  Revised  Statutes,  i88y. 

Montana.     Sees.  ii68-yi  Conip.  Stats.,  188^,  p.  gj^. 

Nevada.     Sees.  s6j5-'/g  General  Statutes,  1885. 

Oregon.     Sees.  642,  646  I  Hilts  Codes,  i8g2. 

Utah.     Sees.  ^2g/~j  Compiled  Lazus,  1888,  Vol.  II. 

Washington.     Sees.  '/i4~'/i'/  II  Hills  Codes,  i8gi. 

§  718.    Manner  of  Service.— In  the  absence  of 

statutory  provision  as  to  the  manner  of  service  of  the 
writ,  as  in  most  of  the  Pacific  States,  there  is  a  diver- 
sity of  opinion  among  attorneys  and  officers  as  to  the 
manner  in  which  this  writ  should  be  served — whether 
service  should  be  made  with  the  original  writ  or  a  copy 
thereof  Section  1478  of  the  Penal  Code  of  California 
seems  to  require  the  service  to  be  made  with  the 
original  writ;  and  Section  1479  gives  weight  to  this 
construction  by  providing  that,  if  the  person  to  whom 
the  writ  is  directed  refuses,  after  service,  to  obey  the 
same-,  th(-  court  or  judge,  upon  affidavit  (not  upon  any 
pturn  of  the  officer  who  served  th(.'  writ),  must  issue 
an  attachment  against  such  person,  vxc.  Under  the 
old  rr)mmr)n    law   y)rarticc,  the  original  writ  of  habeas 


HABEAS    CORl'US.  §  7^9 

cor^s  was  service!  upon  the  person  to  whom  it  was 
directed.  The  same  practice  is  followed  in  the  State 
of  New  York,  the  codes  of  which  State  were  closely- 
followed  by  the  code  commissioners  of  California  in 
codifying  the  laws  of  this  State.  In  Utah  and  Oregon, 
the  statute  expressly  requires  delivery  of  the  original 
writ. 

Oregon.     Sec.  642  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  ^2g/  Compiled  Laws,  188S,  Vol.  II. 

§  719.  The  Return. — "The  person  on  whom  the 
writ  is  served,  must  state  in  his  return,  plainly  and 
unequivocally: — 

"  I.  Whether  he  has  or  has  not  the  party  in  his 
custody,  or  under  his  power  or  restraint. 

"2.  If  he  has  the  party  in  his  custody  or  power,  or 
under  his  restraint,  he  must  state  the  authority  and 
cause  of  such  imprisonment  or  restraint. 

"3.  If  the  party  is  detained  by  virtue  of  any  writ, 
warrant  or  other  written  authority,  a  copy  thereof 
must  be  annexed  to  the  return,  and  the  original  pro- 
duced and  exhibited  to  the  court  or  judge  on  the  hear- 
ing of  such  return."  {California.  Sec.  1480  Penal 
Code. ) 

No  writ  of  habeas  corpus  can  be  disobeyed  for  defect 
in  form.     {Sec.  I4g5  ditto.)     Compare: 

Arizona.     Sees.  226^,  22g4  Revised  Stattttes,  i88j, 

Colorado.     Sees.  i6og-ii  General  Statutes,  i88j. 

Idaho.     Sec.  8^4"/  Revised  Statutes,  188"/. 

Montana.     Sec.  iiyj  Compiled  Statues,  i88y,  p.  gy6. 

Nevada.     Sees.  j68o,  j6gi,  j6g8,  Gen.  Stats.,  1885. 

Oregon.     Sees.  61J-4,  I  Hill's  Codes,  i8g2. 

Utah.     Sec.  ^2g6  Compiled  Laivs,  1888,  Vol.  II. 

Washington.     Sees,  yig,  '/j2  II  Hill's  Codes,  i8gi. 

29 


§§  720,    720a  HABEAS    CORPUS. 

§  720.  Certificate  of  Service  by  Sheriff.— Sec- 
tion 1480  of  the  Penal  Code  of  California  commands 
that  "the  person  upon  whom  the  writ  is  served  must 
state  in  his  return,"  etc.  The  statute  contemplates  but 
one  return,  and  that  is  of  the  person  to  whom  the  writ 
is  directed.  When  the  writ  is  served  by  the  sheriff 
upon  another  person,  a  record  of  the  service  by  the 
officer  should  be  made  in  the  court  from  which  the  writ 
issued,  so  that  parties  interested  in  the  proceeding  need 
not  be  compelled  to  seek  the  officer  in  person  to  ascer- 
tain if  service  had  been  made.  To  this  end  a  certifi- 
cate of  service  may  be  made  by  the  officer,  and  filed 
with  the  clerk  of  the  court,  upon  a  copy  of  the  writ. 
Such  certificate  may  be  in  the  following  form : — 


In  the  Matter  of  the  Application  of 
JOHN  DOE 


I 

For  a  Writ  of  Habeas  Corpus.     \ 

State  of  California        \  ^^  j  ^^^^^     ^^^^i,-    ^^^^  ^^,^  ^^^ 

County  of  Alameda,  j  -  ^ 

day  of iS .  . ,  I  served  the  writ  of  habeas  corpus 

issued  in  the  above  entitled  matter  (a  copy  of  which  is  hereto 

annexed)  upon  the  said by  delivering  said  writ  to  him 

personally  at  said  County  of  Alameda. 

Dated     [Signed] 

Sheriff'  of County. 

§  720a.  Prisoner  Held  by  United  States  Court. 

— A  state  judge  or  court  has  no  jurisdiction  to  issue  a 
writ  of  Jiaheas  corpus,  or  to  continue  proceedings  under 
the  writ  \vh('n  issued,  for  the  discharge  of  a  person  held 
under  the  authority,  or  claim  and  color  of  the  authority, 
of  the  riu'tccl  States  by  an  officer  of  that  government. 
When  it  is  made  known  to  the;  state  court  that  the 
prisoncM-  is  held  by  virtue  of  an  ordcT  of  a  court  ot   the 


HABEAS    CORPUS.  §§  72  I,   722 

United  States,,  the  writ  should  be  discharged.  [Able- 
man  vs.  Booth,  21  Hozvard  U.  S.  506;  Tarbles  Case, 
I J  Wallace  (J.  S.  jg'^.)  In.  s,ych  a.  case,  the  sheriff 
should  not  bring  the  prisoner  into  .court  under  the 
writ,  but  should  make  his.  return  to  the  writ  showing 
the  facts.      For  form  of  return,  see  Sec.  ^2,2,. post. 

§  721     Warrant  May  Issue  Instead  of  Writ. 

— When  it  appears  that  there  is  reason  to  believe  that 
the  person  detained  will  be  carried  out  of  the  jurisdic- 
tion of  the  court  or  judge,  a  warrant  may  be  issued 
(instead  of  writ  of  habeas  corpus)  "directed  to  the 
sheriff,  coroner  or  constable,  commanding  the  officer  to 
take  the  person  held  in  custody,  confinement  or  re- 
straint, and  forthwith  brincr  him  before  such  court  or 
judge.  A  command  may  also  be  inserted  in  the  war- 
rant for  the  apprehension  of  the  person  charged  with 
such  illegal  detention  and  restraint."  [California,  Sees. 
i^gy-S,  Civil  Code  Procedure.) 

Arizona.     Sec.  2284  Revised  Statutes,  188'j. 

Idaho.     Sec.  8j6^  Revised  Statutes,  188'j. 

Montana.     Compiled   Statutes,   i88j.    Vol.  II,  Sees. 

1193-4- 

Nevada.     Sec.  j6yg  General  Statutes,  1885. 
Oregon.     Sees.  616,  618  I  Hills  Codes,  i8g2, 

§  722.  Service  on  Holidays. — Statutory  provi- 
sion is  usually  made  for  the  issuance  and  service  of  the 
writ  of  habeas  corpus  on  any  day  or  at  any  time. 

Arizona.     Sec.  228g  Revised  Statutes,  188'j. 

California.     Sec.  1502  Penal  Code. 

Idaho.     Sec.  8j6g  Revised  Statutes,  188 j. 

Montana.  Compiled  Statutes,  i88j,  p.  gjj.  Sees. 
1166-JO. 


§723  HABEAS    CORPUS. 

Nevada.     Sec.  ^7^5  General  Statutes,  188^. 
Washington.     Sec.  /j/  //  Hiirs  Codes,  i8gi. 

§  723.  No  Fees  Chargeable. — Usually  no  fees  are 
to  be  charged  in  habeas  corpus  cases,  mention  being 
either  omitted  in  the  respective  fee  bills  or  express  pro- 
vision being  made  prohibiting  the  collection  of  fees. 

California.  Sec.  4333  Penal  Code;  Sec.  228  Co. 
Govt,  Bill. 

Idaho.     Sec.  2138  Revised  Statutes,  i88y.  | 


I 


CHAPTER  XXVI. 


FUGITIVES     FROM     JUSTICE. 


§■  724.  Fugitives  from  Justice,  Generally. 

§  725.  When  Extradition  May  Be  Had. 

§  726.  Proceedings  for  Requisition. 

§  726a.  F'orms  for  Application. 

§  727.  Arrest  of  Fugitive  for  Extradition. 

§  728.  Expense  of  Extradition. 

^  729.  Requisites  for  Obtaining  Requisition. 

§  730.  No  Fee  for  Procuring  Extradition  Papers. 

§  724.    Fugitives   from  Justice,  Generally. — 

Section  2  of  Article  IV  of  the  Constitution  of  the 
United  States  provides  that  "a  person  charged  in  any 
state  with  treason,  felony  or  other  crime,  who  shall 
flee  from  justice  and  be  found  in  another  state,  shall, 
on  demand  of  the  executive  authority  of  the  state  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the 
state  having  jurisdiction  of  the  crime,"  Pursuant  to 
these  provisions,  the  several  states  have  enacted  statutes 
prescribing  the  procedure  for  the  arrest  and  surrender 
of  .such  criminals  within  the  boundaries  of  the  state 
and  for  the  institution  of  proceedings  to  bring  back 
criminals  who  have  fled  to  other  states. 

Arizona.     Sees.  2j§j~yo  Penal  Code. 

California.  Sees.  i^4'j-^8  Penal  Code:  Sec.  j8o 
Political  Code. 


§§  725,    726  FUGITIVES    FROM    JUSTICE. 

Colorado.     Sees.  20^7-46  Mills'  Ann.  Statutes,  rSgi, 
Idaho.     Sees.  8415-26  Revised  Statutes,  188 j. 
Montana.     Sees.  44g-450  Crim.  Prac.  Aet. 
Nevada.     Sees.  45^^-41  General  Statutes,  i88§. 
Oregon.     Sees,  idg^-iyog  I  Hills  Codes,  i8g2. 
Utah.     Sees.  52^4-81  Compiled  Laws,  1888. 
Washington.     Sees.  i^8y-g2  II  Hills  Codes,  i8gi; 
See.  2g46  I  ditto.        ^        

§  725.  When  Extradition  May  Be  Had.  In  or- 
der that  the  arrest  and  delivery  of  the  fugitive  may  be 
had,  there  must  be  actually  pending  against  him  in  the 
state  makincr  the  demand  a  charge  of  criminalitv  in  the 
form  of  an  indictment,  information,  affidavit  or  other 
accusation  authorized  by  the  laws  of  the  state.  (5,  6 
N.  Y.  182;  J  Me  Lean  121;  4g  Ceil.  4J4.)  The  affi- 
davit, upon  which  the  requisition  issues,  need  not  set 
forth  the  crime  charged  with  all  legal  exactness  (5  Cal. 
2jy)\  neither  is  it  necessary  that  a  copy  of  the  indict- 
ment shall"  accompany  the  demand  (y  Ind.  6ii)\  but 
the  requisition  or  proceeding  must  show  that  the  crime 
was  committed  within  the  jurisdiction  of  the  state 
making  the  application,  and  that  the  criminal  has  fled 
from  justice  and  taken  refuge  in  another  state,  (j 
Me  Lean,  121.) 

k  726.  Proceedings  for  Requisition. — A  per- 
son who  tlees  from  justice  to  another  state:  ma\'  be 
brought  iDack  upon  a  requisition  upon  the  governor  of 
the  state  to  which  the  fugitive  has  e.scaped.  To 
obtain  such  n'(]uisition,  application  must  be  madtj  to 
the  governor  of  the  sial<-  from  which  the  criminal  has 
(led,  accompanied  with  an  affidavit  of  the  j)erson  mak- 
ing th<-  a|)]i]icalion.  setting  forth  the  name  of  the  tugi- 


FUGITIVES    FROM    JUSTICE.        §^   726a,    ^ 2"] 

tive,  the  crime  with  which  he  is  charged  or  has  been 
convicted,  and  the  present  whereabouts  of  the  fugi- 
tive, together  with  an  exemplified  copy  of  the  indictment 
found  or  other  judicial  proceedings  had  against  him  in 
the  state  in  which  he  is  charged  to  have  committed  the 
offense.  All  papers  thus  forwarded  must  be  in  dupli- 
cate. The  application  for  a  requisition  should  request 
the  -appointment  of  some  person  (naming  him)  as  a 
suitable  person  to  receive  and  bring  back  the  fugitive. 
Care  should  be  taken  to  see  that  the  proper  certificate 
is  made  out,  signed  by  the  district  attorney,  in  ac- 
cordance with  Sec.  729,  post,  and  forwarded  with  the 
other  papers  to  the  governor. 

§  726a.  Forms  for  Application.— Forms  of  affi- 
davit and  request  for  requisition  are  given  in  the  chap- 
ter on  Forms  (see  Chapter  XXXI,  Sees.  ^'ji-2,posl) 
and  may  be  varied  so  as  to  conform  to  the  particular 
proceeding  under  which  the  fugitive  is  sought  to  be 
arrested. 

§  727.    Arrest  of  Fugitive  for  Extradition.— 

A  fujritive  from  another  state  mav  be  committed  bv 
the  magistrate  to  the  proper  custody  in  the  county  for 
a  reasonable  time,  to  enable  the  arrest  of  the  fugitive 
under  the  warrant  of  the  governor,  on  the  requisition 
of  the  orovernor  of  the  state  in  which  the  crime  was 
committed.  The  accounts  of  the  person  employed  in 
brinorino-  back  such  fugitive  must  be  audited  bv  the 
state  board  of  examiners  and  paid  out  of  the  state 
treasury.  The  proceedings  for  the  arrest  and  commit- 
ment are,  in  all  respects,  similar  to  those  provided  for 
the  arrest  and  commitment  of  a  person  charged  with 
any  public  offense  committed  in  the  state,  except  that 


§1  yiS,    729  FUGITIVES    FROM    JUSTICF. 

usually,  as  in  California,  an  exemplified  copy  of  an  in- 
dictment, or  other  judicial  proceedings,  may  be  received 
as  evidence  before  the  magistrate.  {California.  Sees. 
1548-^0,  i^5y  Penal  Code. ) 

§  728.    Expense  of  Extradition.  -The  expense 

of  bringing  back  fugitives  from  justice  is  borne  by  the 
state  to  which  he  is  returned  for  trial,  and  statuton^ 
provision  is  usually  made  for  the  auditing  of  the  bills 
therefor. 

Arizona.     Sec.  2j6g  Penal  Code. 

California.     Sec.  1557  Penal  Code. 

Colorado.     Sec.  1535  General  Stalutes,  i88j. 

Oregon.     Sec.  i6gj  I  Hill's  Codes,  i8g2. 

Washington.     Sec.  ij8'/  II  Hills  Codes,  i8gi. 

I  729.    Requisites  for  Obtaining  Requisition. 

— The  following  are  the  rules  of  practice  adopted  by 
a  conference  of  the  representatives  of  the  different 
states,  upon  the  subject  of  Requisitions.  All  requisi- 
tions directed  to  the  Governor  should  conform  to  the 
same : 

'  "The  application  for  the  requisition  must  be  made  or 
recommended  by  the  District  Attorney  for  the  county 
in  which  the  offense  was  committed,  and  must  be  in 
(luplicat(t  original  papers,  or  certified  copies  thereof. 

"The  following  must  appear  by  the  certificate  of  the 
I  )istrict  Attorney : 

"(<•/)  The  lull  name  of  th(;  person  lor  whom  extra- 
dition is  asketl,  together  with  the  name  of  the  agent 
jjropos(;d,  to  be  properly  spelled,  in  Roman  ca|)ital  let- 
ters; for  example.   JOHN    DOi:. 

"  {/>)  I  hai  ill  his  opinion  the  (muIs  ol  public  justice 
re(|uire  ihal  llie  .illeged  criminal  i)e  brouglu  to  this 
Slate  lor  trial  ai  the  public  exptMise. 


Fl'(;iTIVKS    FROM    JUSTICE.  729 

"  (c)  That  he  believx's  he  has  sufficient  evidence  to 
secure  the  conviction  of  the  fugitive, 

"(^)  That  the  person  named  as  agent  is  a  proper 
person,  and  that  he  has  no  private  interest  in  the 
arrest  of  the   fugitive. 

"(e)  If  there  has  been  any  former  appHcation  for  a 
requisition  for  the  same  person,  growing  out  of  the 
same  transaction,  it  must  be  so  stated,  with  an  ex- 
planation of  the  reasons  for  a  second  request,  together 
with  the  date  of  such  application,  as  near  as  may  be. 

" {/)  If  the  fugitive  is  known  to  be  under  either 
civil  or  criminal  arrest  in  the  State  or  Territory  to 
which  he  is  alleo-ed  to  have  fled,  the  fact  of  such  ar- 
rest  and  the  nature  of  the  proceedings  on  which  it  is 
based  must  be  stated. 

"  {£■)  That  the  application  is  not  made  for  the  pur- 
pose of  enforcing  the  collection  of  a  debt,  or  for  any 
private  purpose  whatev^er,  and  that  if  the  requisition 
applied  for  be  granted,  the  criminal  proceedings  shall 
not  be  used  for  any  of  said  objects. 

"  {/i)  The  nature  of  the  crime  charged,  with  a  refer- 
ence, when  practicable,  to  the  particular  statute  defin- 
ing and  punishing  the  same. 

"  {i)  If  the  offense  charged  is  not  of  recent  occur- 
rence, a  satisfactory  reason  must  be  given  for  the  delay 
in   making  the  application. 

"I.  In  all  cases  of  fraud,  false  pretenses,  embezzle- 
ment or  forgery,  when  made  a  crime  by  the  common 
law,  or  any  penal  code  or  statute,  the  affidavit  of  the 
principal  complaining  witness  or  informant  that  the  ap- 
plication is  made  in  good  faith,  for  the  sole  purpose  of 
punishing  the  accused,  and  that  he  does  not  desire  or 
expect  to  use  the  prosecution  fo^"  the  purpose  of  collect- 
ing a  debt,  or  for  any  private  purpose,  and  will  not,  di- 


§   729  FUGITIVES    FROM    JUSTICE. 

rectly  or  indirectly,  use  the  same  for  any  of  said  pur- 
poses, shall  be  required,  or  a  sufficient  reason  be  given 
for  the  absence  of  such  affidavit. 

'*2.  F roof  hy  affidavit  of /ac^s  and  draims^ances  s2Lt- 
isfying  the  Executive  that  the  alleged  criminal  has  fled 
from  the  justice  of  the  State,  and  is  in  the  State  on 
whose  Executive  the  demand  is  requested  to  be  made, 
must  be  given.  The  fact  that  the  alleged  criminal  was 
in"  the  State  where  the  alleg^ed  crime  was  committed  at 
the  time  of  the  commission  thereof,  and  is  found  in  the 
State  upon  which  the  requisition  was  made,  shall  be  suf- 
ficient evidence,  in  the  absence  of  other  proof,  that  he 
is  a  fugitive  from  justice. 

"3.  If  an  indictment  has  been  found,  certified  copies, 
in  duplicate,  must  accompany  the  application. 

"4.  If  an  indictment  has  not  been  found  by  a  grand 
jury,  the  /ac^s  and  circumstances  showing  the  commis- 
sion of  the  crime  charged,  and  that  the  accused  perpe- 
trated the  same,  must  be  shown  by  affidavits  taken  be- 
fore a  magistrate  (a  Notary  Public  is  not  a  magistrate 
within  the  meaning  of  the  statutes),  and  that  a  warrant 
has  been  issued,  and  duplicate  certified  copies  of  the 
same,  together  with  the  returns  thereto,  if  any,  must  be 
furnished  upon  an  application. 

"5.  The  official  character  of  the  officer  taking  the 
affidavits  or  depositions  and  of  the  officer  who  issued 
the  warrant  must  be  duly  certified. 

"6.  Upon  the  renewal  of  an  application  (for  exam- 
ple: on  the  ground  that  the  fugitive  has  fled  to  an- 
other state,  not  having  been  found  in  the  state  on 
which  the  first  was  granted),  new  or  certified  copies  of 
})ap<-rs  in  conformity  with  the  abo\c  rules  must  be  tur- 
nished. 

"7.    In    the  case  of  an\'   j>crson  who  has  been   con- 


flk;itives  from  justice.  $  730 

victed  of  any  crime,  and  escapes  after  conviction,  or 
while  serving  his  sentence,  the  appHcation  may  be 
made  by  the  jailer,  sheriff  or  other  officer  having  him 
in  custody,  and  shall  be  accompanied  by  certified  copies 
of  the  indictment  or  information,  record  of  conviction 
and  sentence,  upon  which  the  person  is  held,  with  the 
affidavit  of  such  person  having  hirn  in  custody,  showing 
such  escape,  with  the  circumstances  attending  the  same. 
"8.  No  requisition  will  be  made  for  the  extradition 
of  any  fugitive  except  in  compliance  with  these  rules." 

§  730.  No  Fee  for  Procuring  Extradition  Pa- 
pers.— "No  compensation,  fee  or  reward  of  any  kind 
can  be  paid  to  or  received  by  a  public  officer  of  this 
State,  or  other  person,  for  a  service  rendered  in  procur- 
ing^ from  the  o-overnor  the  demand  for  the  surrender  of  a 
fugitive,  or  for  conveying  him  to  this  State,  or  detain- 
ing him  therein,  except  as  provided  by  law."  Any  per- 
son violating  any  of  these  provisions  is  guilty  of  a  mis- 
demeanor.     [California.     Sees.  144,  1558  Penal  Code.) 


CHAPTER   XXVII. 


REWARDS. 


§  731.  Offer  of  Reward  Binding. 

§  732.  Essentials  for  Recovery- 

§  733-  When  Reward  Is  Not  Earned. 

§  734.  Recovery  by  Deputy  Sheriff — Public  Policy. 

§  731.  Offer  of  Reward  Binding.  -An  agree- 
ment, by  one  who  has  lost  property  by  fire  or  theft,  to 
pay  a  certain  sum  to  anyone  who  will  secure  the  arrest 
and  conviction  of  the  criminal,  is  not  a  nude  pact,  but 
may  be  enforced  by  a  person  performing  the  service. 

In  such  cases,  the  offer  of  a  reward  or  compensation 
by  public  advertisement,  either  to  a  particular  person 
or  class  of  persons,  or  to  any  and  all  persons,  is  a  con- 
ditional promise;  and  if  anyone  to  whom  such  offer  is 
made  shall  perform  the  service  before  the  offer  is  re- 
voked, such  performance  is  a  good  consideration,  and 
the  offer  becomes  a  legal  and  l)inding  contract.  Until 
the  performance,  the  offer  may  be  revoked  at  pleasure. 

Such  advertisements,  upon  acceptance  of  their  terms 
and  perf(jrmancc  of  the  services,  become  written  con- 
tracts. {Ryer  vs.  Stockwell,  14  Cal.  IJ4;  McLeod  vs. 
Meade,  JJ  Cal.  Sj.) 

\  732.     Essentials  for  Recovery.     lO  «-ntitle  a 

[xTsoii  to  recover  a  reward  he  must  show  that  he  knew 


REWARDS.  §§  y2>Z^  734 

the  reward  was  offered,  and  that  he  acted  in  reference 
to  it,  and  in  faith  of  getting  it.  {Hewitt  vs.  Anderson, 
S6  Cal.  476.) 

§  72,2,-    When  Reward  Is  Not  Earned.— An  offer, 

by  a  party  who  has  been  robbed,  of  a  reward  for  the 
arrest  and  conviction  of  the  robbers,  is  not  earned  by 
one  who  merely  communicates  to  the  party  robbed  his 
suspicions  that  a  certain  person  is  guilty,  with  a  state- 
ment that  others  were  satisfied  of  his  guilt,  and  that 
circumstances  pointed  strongly  towards  him,  and  who 
does  not  claim  the  reward  until  after  the  arrest  and  con- 
viction of  the  robbers.  {Burke  vs.  Wells,  Fargo  dr" 
Co.,  50  Cal.  218.) 

Where  the  reward  was  for  such  information  as  would 
lead  to  the  arrest  and  conviction  of  th^  criminal,  there 
could  be  no  claim  for  the  money  until  trial  and  convic- 
tion. The  Statute  of  Limitations  begins  to  run  from 
that  time,  and  the  limitation  would  be  the  same  as  on 
a  written  contract.      {Ryer  vs.  Stockwell,  14  Cal.  IJ4) 

§  734.    Recovery  by  Deputy  Sheriff— Public 

Policy. — An  agreement  to  compensate  a  deputy  sheriff 
for  procuring  evidence  to  convict  for  a  crime  committed 
in  another  county  is  not  contrary  to  public  policy  and 
may  be  enforced.     {Harris  vs.  Moore,  70  Cal.  S02.) 


CHAPTER    XXVIIl 


SEARCH     WARRANTS. 


§  735 
§  736 
§  737 
I  738 
§  739 
§  740 
^  741 


Search  Warrant,  Generally. 

How  Served. 

By  Whom  Served. 

Time  for  Return. 

Service  by  Day  or  Night. 

Receipt  for  Property  Taken. 

Search  of  Person — Lottery  Tickets. 


§  735.     Search  Warrant,  Generally.— A  search 

warrant  is  an  order  in  writing,  in  the  name  of  the 
people,  signed  by  a  magistrate,  directed  to  a  peace  offi- 
cer, commanding  him  to  forthwith  search  the  person 
or  place  named  for  the  property  specified,  and  to  bring 
it  before  the  magistrate.  [California.  Sec.  '  T52J 
Penal  Code.)  The  powers  and  authority  of  officers 
under  search  warrants  are  prescribcxl  by  the  statutes  to 
which  reference  is  made  at  the  end  of  this  section  ;  but 
they  are  entirely  similar  in  each  case  to  those  under  the 
California  procedure,  which  is  outlined  in  this  chapter. 

Arizona.     Sees.  2j2y-^6  Penal  Code. 

California.      Sees.  /^2j-j/  Penal  Code. 

Colorado.     Sees.   14^1  2  Mills    Ann.  Stats.,    i8gi. 

Idaho.     Sees.  8jgo  S^og  Revised  Statutes,  rSSy. 

Montana.     Sees.  4^2-444  Criminal  Practice  Act. 


SEARCH    WARRANTS.  §§   73^-739 

Nevada.     Sees.  4510-^2  General  Statutes,  1S85. 
Oregon.     Sees.  i6'/j-g4  I  Hill's  Codes,  i8g2.       . ,  , . 
Utah.     Sees.  ^402-21  Compiled  Laws,  1888. 
Washington.     Sees.   ij8j  6,  i56g  II  HiWs  Codes, 
i8gi. 

\  736.  How  Served. — "In  serving- a  search  warrant, 
the  officer  may  i^reak  open  any  outer  or  inner  door  or 
window  of  a  house,  or  any  part  of  a  house,  or  anything 
therein,  to  execute  the  warrant,  if,  after  notice  of  his 
authority  and  purpose,  he  is  refused  admittance.  He 
may  also  break  open  doors  and  windows  to  Hberate  a 
person  who,  having  entered  to  aid  him,  is  detained 
therein,  or  when  necessary  for  his  own  Hberatioh." 
{California.     Sees,  i^ji-2  Fecial  Code.) 

§  737-  By  Whom  Served. — It  may  in  all  case^  be 
served  by  any  sheriff,  constable,  marshal  or  policierriah, 
but  by  no  other  person,  except  in  aid  of  the  officer  oh 
his  requiring-  it,  he  being  present  and  acting  in  its  ex- 
ecution.     {California.     See.  i^ jo  Penal  Code.) 

§  'J2,'^.  Time  for  Return. — "  A  search  warrant  must 
be  executed  and  returned  within  ten  days  after  its  date  ; 
after  the  expiration  of  this  time,  the  warrant,  unless 
executed,  is  void."  {California.  See.  1534  Penal 
Code. ) 

§  739.  Service  by  Day  or  Night. — The  magis- 
trate issuing  a  search  warrant  must  insert  a  direction 
therein  "that  it  be  served  in  the  daytime,  unless  the 
affidavits  are  positive  that  the  property  is  on  the  person 
or  in  the  place  to  be  searched,  in  which  case  he  may 
insert  a  direction  that  it  be  served  at  any  time  of  the 
day  or  night."     {California.     See.   1533  Peital  Code.) 


§§  740'   741  SEARCH    WARRANTS. 

§  740.  Receipt  for  Property  Taken— The  offi- 
cer must  give  a  receipt  for  the  property  taken  to  the 
person  in  whose  possession  it  was  found,  and  file  with 
the  return  an  inventory  of  the  property  taken.  {Cal- 
ifornia.    Sec.  1535  Penal  Code.) 

§  741.    Search  of  Person—Lottery  Tickets.— 

The  Legislature  has  power  to  authorize  the  issuance  of 
a  warrant  to  search  the  person  of  an  individual  in 
a  proper  case.  In  California  such  power  has  been 
exercised  by  the  enactment  of  Sees.  1523-42  of  the 
Penal  Code. 

Under  a  warrant  authorizing  the  searching  of  a 
certain  person  for  lottery  tickets,  the  officer  was  justi- 
fied in  carrying  away  tickets  discovered  in  the  room 
where  the  search  was  made,  for  the  purpose  of  using 
them  as  evidence.  After  the  tickets  are  no  longer 
required  as  evidence,  the  owner  is  not  entitled  to  have 
them  returned  to  him,  in  a  suit  against  a  police  officer 
having  them,  as  they  are  in  law  not  in  his  custody  but 
in  that  of  the  magistrate  to  whom  they  were  taken 
under  the  search  warrant.  [Collins  vs.  Lean.  68  CaL 
284.) 


CHAPTER    XXIX 


COUNTY    JAIL. 

Jail,  by  Whom  Kept  and  for  What  Used. 
Rooms  Required  in  Jails. 
Searching-  for  Cells,  etc. 
Prisoners  to  be  Classiiied. 
Prisoners  Must  Be  Confined. 
United  States  Prisoners. 

When  Jail  of  Contiguous  County  May  Be  Used. 
Removal  in  Case  of  Fire. 
Removal  in  Case  of  Pestilence. 
Service  of  Papers  on  Prisoners. 
Guard  for  Jail. 

SheritTMust  Receive  All  Persons  Committed. 
Prisoners  on  Civil  Process. 
Expense  of  Boarding  Prisoners. 
Working  of  Prisoners. 
§  756a.  Custody  of  Prisoners  While  Working. 
Officer  Refusing  to  Receive  Criminals. 
Prisoner  Entitled  to  \' isits  of  Counsel. 
Rescuing  Prisoners. 
Escapes  from  Jail. 
Escape — Computation  of  Term. 
Credits  Allowable  to  Prisoners. 
Inhumanity  to  Prisoners. 
Carrying  Articles  to  Prisoners. 
Injuring  Jails. 

§  742.    Jail,  by   Whom  Kept    and  for  What 

Used. — The  common  jails   in  the  several  counties  of 


;o 


§ 

742. 

§  743- 

§ 

744- 

§ 

745- 

§ 

746. 

§ 

747- 

§ 

748. 

^ 

749- 

§ 

750- 

§ 

751- 

?^ 

752- 

§ 

753- 

§ 

754- 

§ 

755- 

§ 

756. 

§ 

756a 

§ 

757- 

§ 

758. 

§ 

759- 

8 

760. 

§ 

761. 

§ 

762. 

§ 

763- 

§ 

764. 

?^ 

765- 

§§  743'  744  COUNTY  jaii.. 

the  state  are  kept  by  the  sheriffs  of  the  counties  in 
which  they  are  respectively  situated,  and  are  used  for 
the  detention  of  all  persons  lawfully  committed 
thereto.      {^California.     Sec.  i^gy  Penal  Code.) 

Colorado.     Sec.  8^4  Mills   Ann.  Statutes,  i8gi. 

Montana.  Sec.  854,  p.  8yj ;  Sec.  i2yo,  p.  1000, 
Compiled  Statutes,  188^. 

Nevada.     Sec.  21  jg  General  Statutes,  188^. 

Utah.     Sees.  loy,  no,  p.  280,  I  Comp.  Lazvs,  1888. 

Washington.     Sec.  i ig8  I  Hilts  Codes,  i8gi . 

%  743.    Rooms  Required  in  Jails. —   Kach  jail 

shall  contain  a  sufficient  number  of  rooms  to  allow  all 
persons  belonging  to  either  one  of  the  following  classes 
to  be  confined  separately  and  distinctly  from  other  per- 
sons belonging  to  either  of  the  other  classes:  (i)  Per- 
sons committed  on  criminal  process  and  detained  for 
trial;  (2)  persons  already  convicted  of  crime  and  held 
under  sentence  ;  (3)  persons  detained  as  witnesses  or 
held  under  civil  process,  or  under  an  order  imposing 
punishment  for  contempt  ;  (4)  males  separately  from 
females."      {California.     Sec.  i^g8  Penal  Code.) 

^  744.    Searching  of  Cells,  etc.-  All  cells  should 

Ixt  frequently  searched,  and  mattresses  and  bedding 
thoroughly  overhauled,  for  contraband  articles.  Saws, 
files  and  even  ropes,  are  easily  smuggled  into  a  jail, 
despite  the  watchfulness  of  its  keepers.  There  is  no 
criminal  so  harckMied  in  crime  but  that  he  has  sympa- 
thiz(;rs  who  are  ever  ready  to  aid  him  to  regain  his 
liberty.  With  th<'  more  desperate  classes  it  is  a  con- 
stant study  of  how  to  escape  from  confinement.  With 
such  j)rison('rs  the  jailer  must  exercise  constant  vigi- 
lance or  allow  himscll  to  Ix'  outwitted. 


COUNTY    JAIL.  §§   745-748 

§  745.    Prisoners   to  be  Classified.— "  Persons 

committed  on  criminal  process  and  detained  for  trial, 
persons  convicted  and  under  sentence  and  persons 
committed  upon  civil  process,  must  not  be  kept  or  put 
in  the  same  room,  nor  shall  male  and  female  prisoners 
(except  husband  and  wife)  be  kept  or  put  in  the  same 
room."     {California.     Sec.  T^gg  Penal  Code.) 

Utah.     Sees.  log,  iii,p.  280,  I  Compiled  Laws,  J  888. 

§  746.  Prisoners  Must  Be  Confined.— "A  pris- 
oner committed  to  the  county  jail  for  trial  or  for  ex- 
amination, or  upon  conviction  for  a  public  offense,  must 
be  actually  confined  in  the  county  jail  until  he  is  legally 
discharged ;  and  if  he  is  permitted  to  go  at  large  out  of 
the  jail,  except  by  virtue  of  a  legal  order  or  process,  it 
is  an  escape."      [California.     Sec.  1600  Penal  Code.) 

§  747.    United  States  Prisoners. —  'The  sheriff 

must  receive,  and  keep  in  the  county  jail,  any  prisoner 
committed  thereto  by  process  or  order  issued  under 
the  authority  of  the  United  States,  until  he  is  discharged 
according  to  law,  as  if  he  had  been  committed  under 
process  issued  under  the  authority  of  this  State ;  pro- 
vision being  made  by  the  United  States  for  the  support 
of  such  prisoner."  The  sheriff  is  answerable  for  such 
prisoner's  safe  keeping,  in  the  courts  of  the  United 
States,  according  to  the  laws  thereof.  {California. 
Sees.  1 60 1 -2  Penal  Code.) 

Idaho.     Sec.  8^2g  Revised  Statutes,  188"/. 

Montana.     Sec.  12'/^,  p.  looi,  Comp.  Stats.,  i88y. 

Oregon.     Sec.  1018  Hills  Codes,  i8g2. 

Utah.     Sec.  iiy,  p.  281,  I  Compiled  Laws,  1888. 

§  748.    When  Jail  of  Contiguous  County  May 

Be  Used. — "When   there   is  no  jail   in   the  county,  or 


SS   -7 


^^   749-752  COUNTY    JAIL. 

when  the  jail  becomes  unfit  or  unsafe  for  the  confine- 
ment of  prisoners,  the  Superior  Court  judge  may 
designate  the  jail  of  a  contiguous  county  for  the  con- 
finement of  the  prisoners  of  his  county,  or  of  anv  of 
them."  {California.  Sec.  160J  Penal  Code.) 
Nevada.     Sec.  2146  General  Statutes,  1885. 

%  749.    Removal  in  Case  of  Fire. —  "When  a 

county  jail  or  a  building  contiguous  to  it  is  on  fire,  and 
there  is  reason  to  apprehend  that  the  prisoners  may  be 
injured  or  endangered,  the  sheriff  or  jailer  must  remove 
them  to  a  safe  and  convenient  place,  and  there  confine 
them  as  long  as  it  may  be  necessary  to  avoid  the  dan- 
ger." {^California.  Sec.  iSoy  Penal  Code.) 
Nevada.     Sec.  2146  General  Statutes,  188^. 

\  750.    Removal  in  Case  of  Pestilence.    When 

a  pestilence  or  contagious  disease  breaks  out  in  or  near 
a  jail,  and  the  physician  thereof  certifies  that  it  is  liable 
to  endanger  the  health  of  the  prisoners,  the  sheriff  may 
remove  the  prisoners  upon  an  order  of  the  Superior 
judge.  {California.  Sec.  1608  Penal  Code.) 
Nevada.     Sec.  2146  General  Statutes,  188^. 

%  751.    Service  of  Papers  on  Prisoners.— "A 

sheriff  or  jailer  upon  whom  a  paper  in  a  judicial  pro- 
ceeding, directed  to  a  prisoner  in  his  custody,  is  served, 
must  forthwith  deliver  it  to  the  prisoner,  with  a  note 
thereon  of  the-  time  of  its  service.  b'or  a  neglect  to  do 
s(^  h('  is  liable  to  the  j)risoner  for  all  damages  occa- 
sioned th('reby."     {California.     Sec.  i6oq  Penal  Code.) 

Idalio.     Sec.  8^j'/  Revised  Statutes,  /88/. 

lUak.     Sec.  1 12,  p.  2S0,  I  Co)u piled  Iaiws,  1S88. 

§752.      Guard  for  Jail.      "Tiic  sheriff,  when  neces- 
sary, may,  with    the   assciu  in  writing  ol    the    Suj^erior 


I 


coUxVTv  JAIL.  §'^  753-755 

Court  judge,  or,  in  a  city,  of  the  mayor  thereof,  employ 
a  temporary  guard  for  the  protection  of  the  county 
jail,  or  for  the  safe  keeping  of  prisoners,  the  expenses 
of  which  are  a  county  charge."  {California.  Sec. 
1610  Penal  Code.) 

Utah.     Sec.  11  j,  p.  280,  I  Compiled  Laius,  1SS8. 

§  753.    Must  Receive  All  Persons  Committed. — 

"The  sheriff  must  receive  all  persons  committed  to  jail 
by  competent  authority,  and  provide  them  with  neces- 
sary food,  clothing  and  bedding,  for  which  he  shall  be 
allowed  a  reasonable  compensation,  to  be  determined 
by  the  Board  of  Supervisors."  {California.  Sec.  161 1 
Penal  Code.) 

Idaho.     Sec.  S^jg  Revised  Statutes,  i88j. 

Utah.     Sec.  108,  p.  280,  I  Compiled  Lazvs,  1888. 

\  754.    Prisoners  on  Civil  Process. — "Whenever 

a  person  is  committed  on  civil  process,  except  when 
the  people  of  the  state  are  a  party  thereto,  the  sheriff 
is  not  bound  to  receive  such  person,  unless  security  is 
given  on  the  part  of  the  party  at  whose  instance  the 
process  is  issued,  by  a  deposit  of  money,  to  mec.'t  the 
expenses  for  him  of  necessary  food,  clothing  and  bed- 
ding, or  to  detain  such  person  any  longer  than  these 
expenses  are  provided  for.  But  this  does  not  apply  to 
cases  where  a  party  is  committed  as  a  punishment  for 
disobedience  to  the  mandates,  process,  writs  or  orders 
of  court."      {California.     Sec.  161 2  Penal  Code.) 

§  755.    Expense  of  Boarding  Prisoners. — The 

Board  of  Supervisors  shall  allow  to  the  sheriff  his  neces- 
sary expenses  for  boarding  prisoners  at  the  county  jail, 
and  shall  fix  the  price  at  which  they  shall  be  boarded, 
except  when  otherwise  provided  by  law.      {California. 


§§  75^^  75^^  cou^■•^^■   IAIl.. 

^Vi•.   2 1 6,  2^0,   Co.   Gov/.   Bill;    Stats.   i8g^,  pp.  507, 

5") 

When   the   statute  allows  to  the  sheriff,  for  feeding 

the  prisoners,  "a  reasonable  compensation,  to  be  deter- 
mined by  the  Board  of  Supervisors"  {Sec.  161 1  Penal 
Code,  Cal.),  action  by  the  Supervisors  does  not  preclude 
the  officer  from  bringing  suit  against  the  county  in  case 
he  is  dissatisfied  with  the  amount  allowed  by  the  Board. 
{Ftdkerth  vs.  Co2inty  of  Stanislaus,  dy  Cal.  jj^. ) 

Montana.     Sec.  12'jo,  p.  1000,  Comp.  Stat.,  iSSy. 

Utah.     Sees.  114-^,  p.  281,  /  Compiled  Laws,  1888. 

%  756.  Workingof  Prisoners—Custody. -"Per- 
sons confined  in  the  county  jail  under  a  judgment  of 
imprisonment  rendered  in  a  criminal  action  or  proceed- 
ing, may  be  required  by  an  order  of  the  Board  of 
Supervisors  to  perform  labor  on  the  public  works  or 
ways  in  the  county."  [California.  Sec.  161  j  Penal 
Code. ) 

Arizona.     Sec.  ^21  Revised  Statutes,  188/. 

Montana.  Sees.  1280- 4,  pp.  1002  j.  Compiled  Stat- 
utes, 188^. 

Nevada.     Sees.  2148  ^4  General  Statutes,  188^. 

Oregon.     Sees.  ig6o~2  Hills  Codes,   i8g2. 

(Jtah.     Sec.  iSj.  Sub.  28,  Compiled  Laios,  /888. 

^  756a.  Custody  of  Prisoners  While  Working. 

—  Under  two  statutes,  one  r('C|uiring  that  the  sheriff 
must  "take  charg('  of  aiul  keep  the  county  jail  and  th(.' 
jjris(jners  therein,"  and  the  other  authorizing  the  work- 
ing of  prisoners  ujjon  public  roads,  "under  the  direc- 
tion (;f  some  responsible  person,"  the  sheriff  cannot 
refuse  lo  turn  o\(r  prisoners  to  the  overseer  appointed 
b\-  the   su|)ervisors   under  the   laUer  act  on  the  ground 


COUNTY    JAIL.  §§  757-7^^ 

that  he  is  their  only  lecral  custodian.  {Hicks  vs.  Folks, 
gy  Cal.  241.) 

\  7S7-    Officer  Refusing  to  Receive  Criminals. 

— "  Every  sheriff,  keeper  of  a  jail,  constable  or  other 
peace  officer,  who  willfully  refuses  to  receive  or  arrest 
any  person  charged  with  a  criminal  offense,  is  punishable 
by  fine  not  exceeding-  five  thousand  dollars,  and  im- 
prisonment in  the  county  jail  not  exceeding  five  years." 
{California.      Sec.  142  Penal  Code.) 

Colorado.     Sec.  I2g2  Mills  Ann.  Statules,  i8gi. 

Idaho.     Sec.  6^10  Revised  Statutes,  i88j. 

Montana.     Sec.  128,  p.  ^j^,  Compiled  Statutes,  1888. 

Nevada.     Sec.  iyo2  Ge^ieral  Statutes,  188^. 

Utah.     Sec.  44J2  Compiled  Laws,  1888. 

Washington.     Sec.  lyy  Penal  Code. 

%  758.    Prisoner  Entitled  to  See  Counsel.— A 

prisoner  is  entitled  to  receive  visits  from  his  attorney 
at  all  reasonable  times. 

Colorado.     Sec.  210  Mills   Ann.  Statutes,  i8gi . 

\  759.  Rescuing  Prisoners. — "Every  person  who 
rescues  or  attempts  to  rescue,  or  aids  another  person 
in  rescuing  or  attempting  to  rescue,  any  prisoner  from 
any  prison,  or  from  any  officer  or  person  having  him 
in  lawful  custody,"  is  punishable  under  Sec.  loi  of  the 
Penal  Code  of  California.     See  also  Sec.  ^64,  post. 

Montana.  Sees.  121-2,  12^,  pp.  SJ2-j,  Compiled 
Statutes,  i88y. 

Oregon.      Sec.  i8jj.  Hilts  Codes,  i8g2. 

Utah.     Sec.  441 1  Compiled  Lazvs,  1888. 

§  760.  Escapes  from  Jail. —  "Every  prisoner 
confined  in  any  jail  who  escapes  or  attempts  to  escape 
therefrom,  is  guilty  of  a  misdemeanor."  {California. 
Sec.  10 J  Penal  Code.) 


§§   761,    762  COUNTY    JAIL. 

"Every  keeper  ot  a  prison,  sheriff,  deputy  sheriff, 
constable  or  jailer  or  person  employed  as  a  guard,  who 
fraudulently  contrives,  procures,  aids,  connives  at,  or 
voluntarily  permits  the  escape  of  any  prisoner  in  cus- 
tody, is  punishable  by  imprisonment  in  the  state  prison 
not  exceeding  ten  years,  and  fine  not  exceeding  ten 
thousand  dollars."     {^California.     Sec.  108 Penal  Code.) 

"  Every  person  who  willfully  assists  any  prisoner 
confined  in  any  prison  or  in  the  lawful  custody  of  any 
officer  or  person  to  escape,  or  in  an  attempt  to  escape, 
from  such  prison  or  custody,"  is  punishable  by  impris- 
onment in  the  state  prison  not  exceeding  ten  years,  and 
fine  not  exceeding  ten  thousand  dollars.  [California. 
Sec.  log  Penal  Code.) 

Colorado.      Sees.  1284-gi  Mills   Ann.  Stats.  iSgi . 

Idaho.     Sec.  645^  Revised  Statutes,  iSSy. 

Montana.  Sees.  i2j,  126'/,  pp.  ^jj~  4,  Compiled 
Statutes,  i88y. 

Nevada.  Sees.  lyoo  i,  2ijj,  4748,  (jenei-al  Stat- 
utes, i88s- 

Oregon.     Sees.  looi-j,  18JJ-5,  Hill's  Codes,   T8g2. 

Utah.     Sec.  4413 '  Compiled  Laws,  188S. 

Washington.     Sees.  175-8,  Penal  Code. 

^761.  Escape  Computation  of  Term. — An  un- 
authorized release  or  dejjarture  of  a  prisoner  without 
discharge  in  due  course  of  law  is,  in  effect,  a  technical 
escape,  and  ihv.  time  of  his  absence  cannot  be  com- 
puted as  any  part  of  the  term  of  imprisonment.  {Ex 
parte  I'ance,  go  Cal.  208.) 

\  762.    Credits  Allowable  to   Prisoners.     lU 

the  proxisions  of  Sec.    1O14  of  lIic  i'cnal  C'odc'  ot  Cali- 
fornia, as  amended   in    iSq;;,  "lor  each  month  in  which 


COUNTY    JAIL.  §§  763-765 

the  prisoner  appears  by  the  record  to  have  given  a 
cheerful  and  wiUing  obedience  to  the  rules  and  regula- 
tions, and  that  his  conduct  is  reported  by  the  officer 
in  charge  of  the  jail  to  be  positively  good,  five  days 
shall,  with  the  consent  of  the  Board  of  Supervisors, 
be  deducted  from  his  term  of  sentence." 

Nevada.     Sec.  21^^  General  Statutes,  188^. 

\  763.  Inhumanity  to  Prisoners. — "Every  offi- 
cer who  is  guilty  of  willful  inhumanity  or  oppression 
toward  any  prisoner  under  his  care  or  in  his  custody,  is 
punishable  by  fine  not  exceeding  $2,000,  and  by  re- 
moval from  office."    {California.    Sec.  141  Penal  Code.) 

Idaho.     Sec.  6^14  Revised  Statutes,  188'/. 

Montana.     Sec.  115,  p.  5J0,  Comp.  Stats.,  i88j. 

Nevada.     Sec.  iSgy  General  Statutes,  188^. 

Utah.     Sec.  44^5  Compiled  Laws,  1888. 

I  764.  Carrying  Articles  to  Prisoners. —  Ev- 
ery person  who  carries  or  sends  into  a  prison  anything 
useful  to  aid  a  prisoner  in  making  his  escape,  with  in- 
tent thereby  to  facilitate  the  escape  of  any  prisoner 
confined  therein,"  is  punishable  by  imprisonment  in  the 
State  prison  not  exceeding  ten  years  and  fine  not  ex- 
ceeding $10,000.  {California.  Sees.  io8~iio  Penal 
Code.)     See  also  Sec.  759,  ante. 

Montana.    Sees.  124,  126,  p.  jjj,  Comp.  Stats.,  188"/. 

§  765.  Injuring  Jails.-  "  Every  person  who  will- 
fully and  intentionally  breaks  down,  pulls  down,  or 
otherwise  destroys  or  injures  any  public  jail  or  other 
place  of  confinement,  is  punishable  by  fine  not  exceed- 
ing $10,000  and  by  imprisonment  in  the  State  prison 
not  exceeding  five  )^ears."  {California.  Sec.  606 
Penal  Code.) 


CHAPTER    XXX 


FEES    AND  SALARIES. 


§  766. 

§  767- 

§  768. 

§  769- 

§  770. 

§  771- 

§  772. 

§  773- 

§  774. 

§  775- 

§  776. 

§  777- 

§  778. 

§  779- 

I  780. 

§  781- 

§  782. 

§  783. 

^  784- 

§  785- 

^  786. 

^  787- 

S  788. 

^  789- 

^  790- 

^  791- 

?i  792- 


Fees  and  Salaries,  Generally. 

Salaries  of  Deputies. 

Deputies  for  New  Courts. 

Must  Require  Prepayment  of  Fees. 

Receipt  for  Fees  to  be  Given. 

Fee  Book  to  be  Kept. 

Prepayment  of  Expense  of  Publication. 

Mileage — How  Computed. 

Keeper's  Fees  to  be  Allowed. 

Officer's  Lien  for  Fees. 

Change  of  Sheriffs — Fees  on  Release. 

Fees  of  Cororjer  or  Elisor. 

Fees  of  Citizen  for  Service. 

Penalty  for  Receiving  Illegal  Fees. 

Settlement  before  Drawing  Salary. 

Division  of  County — Salaries. 

Salary  during  Erroneous  Suspension. 

Conveying  Prisoners  and  Insane  Persons. 

Sheriff  Entitled  to  Salvage. 

•expenses  in  Pursuit  of  Criminals. 

No  Mileage  for  Unsuccessful  Pursuit. 

Increase  of  Compensation  during  Term. 

.Salaries  of  Constables — How  l^'ixed. 

Bill  against  County  to  be  Itemized. 

Fraudulent  Bills  against  County. 

Allowance  of  Claims  against  the  County. 

No  Fees  in  Habeas  Corpus  Cases. 


FKKS    AND    SALARIKS.  ^§   766,    76/ 

§  766.  FeesandSalaries,Generally.—  rh(;  vari- 
ous statutes  regulating  fees  chargeable  by  and  salaries 
allowed  to  sheriffs  and  constables  in  the  states  and 
territories  to  which  this  work  is  particularly  applicable, 
are  so  numerous  that  even  a  reference  to  the  statutes 
applicable  to  the  several  counties — much  less  the  quot- 
ing of  them  at  length — is  precluded  by  the  necessary 
limitations  upon  such  a  work  as  the  present.  In  some 
states,  as  in  California,  a  different  fee  bill  exists  for 
nearly  every  county;  an  equal  diversity  is  found  in  the 
salary  list,  and  both  are  the  subject  of  frequent  legisla- 
tive change.  Every  officer,  however,  is  presumed  to 
be  familiar  with  the  fee  bill  of  his  own  county,  and,  in 
each  case,  the  officer  will  find  the  appropriate  statute 
easily  accessible. 

In  California  the  sheriff  of  each  county  receives  a 
fixed  salary,  and  is  required  to  pay  into  the  county 
treasury  all  fees  collected  by  him.  Salaries  are  fixed 
by  the  County  Government  Bill  of  1893  [Statutes  iSgj, 
p.  J46),  or  by  the  Bill  of  1883  as  amended  in  1889 
[Statutes  i88g,  pp.  281,  2g'/),  while  the  fees  are  regu- 
lated either  by  the  County  Government  Bill,  ante,  or 
by  various  statutes,  to  which  a  full  reference  will  be 
found  in  the  "Index  ro  Laws  of  California  "  (pub- 
lished by  the  State  in  1894),  under  the  title  "Fees." 

§  767.  Salaries  of  Deputies. — Where  the  sheriff 
is  allowed  by  law  a  salary  in  gross  for  all  services  ren- 
dered by  him  and  his  deputies  in  performing  the  official 
duties  of  sheriff,  as  in  California,  he  may  of  course 
make  his  own  terms  as  to  the  salaries  to  be  paid  to  his 
deputies,  except  as  to  salaries  of  additional  deputies, 
fixed  by  law  and  payable  out  of  the  county  treasury. 

For  a  reference  to  the  statutorv  authority  for  addi- 


§§   768-770  FEES    AND    SALARIES. 

tional  deputies  in  California,  see  "Index  to  Laws  of 
Californl\,"  title  "Sheriff-Deputies." 

^  768.    Deputies  for  New  Courts. — When  addi 

tional  deputies  are  appointed,  as  authorized  upon  in- 
crease of  the  number  of  Superior  judges,  the  salary  of 
each  deputy  is  $125  per  month.  {California.  Stat- 
utes i8gj,p.  S07.) 

§  769.    Must  Require  Prepayment  of  Fees. — 

The  sheriff  is  not  to  perform  any  official  services,  ex- 
cept in  cases  of  habeas  co7pus,  unless  upon  the  prepay- 
ment of  the  fees  prescribed  for  such  services;  and  on 
such  payment,  he  must  perform  the  services  required. 
{California.     Sec.  22 j  Co.  Govt.  Bill,  Statutes  i8gj,  p. 

The  statute  which  declares  that  "any  officer  may  re- 
fuse to  perform  any  services  in  a  civil  action  or  proceed- 
ing, until  the  fee  for  such  service  is  paid,"  is  not  to  be 
construed  as  prohibiting  the  officer  from  performing  the 
service  without  prepayment  of  fees,  but  as  permissive 
merely,  leaving  the  alternatives  of  cash  in  advance  or 
cr(;dit  to  his  own  election.  If,  when  services  are  de- 
manded of  an  officer,  he  fails  to  demand  his  fees  in  ad- 
vance, his  obligation  to  perform  the  duty  required  is 
the  same  as  it  would  be  if  the  fees  were  prepaid  or  ten- 
dered In  ad\anc(^      {Lick  vs.  Madden,  2^  Cat.  202.) 

§  770.     Receipt  for  Fees  to  be  Given.— Upon 

•rc'ceiving  an\-  lees  lor  olficial  duty  t)r  service,  the  sheriff 
"mav  be  required  by  the  person  paying  the  same  to  make 
out  in  writing,  and  dclixtn-  to  such  j)erson,  a  particular 
account  ol  such  lc(;s,  sj)ecil)ing  lor  what  they  respec- 
ti\'''l\    accrued,  and    shall    receipt    the   same;   and    if  he 


FEES    AND    SALARIKS.  %  77  ^-773 

refuse  or  neglect  to  do  so  when  required,  he  shall  be 
liable  to  the  party  paying  in  treble  the  amount  so  paid." 
{Ca/i/omza.  Sec.  224  Co.  Govt.  Bill,  Stahites  iSgj, 
p.  510.) 

§  771.  Fee  Book  to  be  Kept.—  The  sheriff  must 
keep  a  fee  book,  open  to  public  inspection  during  office 
hours,  in  which  must  be  entered,  at  once  and  in  detail, 
all  fees  or  compensation  of  whatever  nature,  kind  or 
description,  collected  or  chargeable.  On  the  first  Mon- 
day of  each  and  every  month,  he  must  add  up  each 
column  in  his  book  to  the  first  day  of  the  month,  and 
set  down  the  totals.  On  the  expiration  of  his  term, 
he  must  deliver  all  fee  books  kept  by  him  to  the 
County  Auditor."  {California.  Sec.  218  Co.  Govt. 
Bill,  Statutes  i8gj,  p.  509.) 


§  772.  Prepayment  of  Expense  of  Publica- 
tion.— "When,  by  law,  any  publication  is  required  to 
be  made  by  an  officer,  of  any  suit,  process,  notice,  or- 
der or  other  paper,  the  costs  of  the  same  shall  be  first 
tendered  by  the  party,  if  demanded,  for  whom  such 
order  of  publication  was  granted,  before  the  officer 
shall  be  compelled  to  make  such  publication."  [Cali- 
fornia.    Statutes  iSdg-yo,  p.  180,  Sec.  jy. ) 

I  773.    Mileage- How    Computed.— When    the 

statute  allows  to  the  officer  certain  mileage  "for  every 
mile  necessarily  traveled,  in  going  only,  in  executing 
any  warrant  of  arrest,  subpciena  or  venire, 
taking  prisoners  before  a  magistrate,"  the  execution  ot 
the  warrant  of  arrest  and  the  taking  before  a  magis- 
trate are  "separate  and  distinct  acts  to  be  done  by  the 
officer,"  and  he  is  entitled  to  mileage  both  ways. 
{Cunningham  vs.  San  Joaquin  Co.,  ^g  Cal.  J2j;  82 
Cal.  i8j;  g8  Cal.  245.) 


§§   77^^777  FEES    AND    SALARIES. 

§  774.    Keeper's  Fees  to  be  Allowed. —When 

the  statute  provides,  as  in  California,  that  "for  his 
trouble  and  expense  in  taking  and  keeping  possession 
of  and  preserving  property  under  attachment  or  exe- 
cution or  other  process,"  the  sheriff  shall  be  entitled  to 
"such  sum  as  the  Court  may  order;  provided  that  no 
more  than  three  dollars  per  diem  shall  be  allowed  to  a 
keeper,"  the  sheriff  is  not  entitled  to  any  fees  for  such 
services  unless  the  Court  makes  an  order  allowing 
them.  {Shumway  vs.  Leakey,  /j  Cal.  260.)  See  also 
Sees.  301-^,  ante. 

.  The  sheriff  is  entitled  to  collect  for  his  expenses  in 
keeping  property  under  levy  only  for  such  period  as 
the  property  was  lawfully  in  his  possession.  [Sam 
Yuen  vs.  McMann,  gg  Cal.  4gy.) 

I  77S.    Officer's  Lien  for  Fees. — A  statute  which 

provides  that  the  officer  may  retain  attached  property 
until  his  fees  are  paid,  in  effect  gives  him  a  lien  for 
their  amount,  which  he  may  enforce  "in  any  suitable 
mode."     [Perrin  vs.  McMann,  gy  Cal.  ^2.) 

'ii  776.    Change  of  Sheriffs— Fees  on  Release. 

— When  a  sheriff  iroes  out  of  office,  holdincr  attached 
property  in  his  possession,  the  party  wishing  to  pro- 
cure a  release  must  seek  him  and  pay  his  fees  in  full 
up  to  the  time  of  the;  release.  {Pe^^rin  vs.  McMann, 
gj  Cal.  52. ) 

\  777.    Fees  of  Coroner  or  Elisor.     "Whenever 

process  is  t;xecuted  or  any  act  performed  by  a  coroner 
or  elisor,  in  the  cases  provided  by  law  in  that  behalf, 
he  shall  be  entitled  to  a  reasonable  compensation,  to 
Ije  fixed  by  the  Court.  '  [California.  Sec.  rog  Co. 
(Jovt.  Art:  Statutes  rSgj,  p.  3^4. ) 


FEES    AND    SALARIES.  §§   778-78 1 

§  778.    Fees  of   Citizen    for   Service.— When 

•summons  or  subpoena  is  served  in  California  by  a  per- 
son other  than  the  sheriff,  under  authority  of  the  stat- 
ute, such  person  shall  be  allowed  such  sum  as  the 
Court  may  think  proper,  not  exceeding  the  amount  al- 
lowed sheriffs  by  law.      {^Statutes  i8gi,p.  5(5.) 

§  779.    Penalty  for  Receiving  Illegal  Fees.— 

"Every  executive  or  ministerial  officer  who  knowingly 
asks  or  receives  any  emolument,  gratuity  or  reward, 
or  any  promise  thereof,  excepting  such  as  may  be  au- 
thorized by  law,  for  doing  any  official  act,  is  guilty  of 
a  misdemeanor."  [California.  Sec.  yo  Penal  Code.) 
The  Board  of  Supervisors,  upon  receiving  a  certified 
copy  of  the  record  of  conviction  of  an  officer  for  re- 
ceiving illegal  fees,  must  declare  his  office  vacant. 
( California.  Sec.  226  Co.  Govt.  Bill,  Statutes  i8gj,  p. 
S^o.) 

§  780.    Settlement  before  Drawing  Salary. — 

In  California  the  sheriff  is  not  entitled  to,  and  the  au- 
ditor must  not  draw  his  warrant  for,  monthly  salary 
until  he  has  produced  the  certificate  of  the  county  treas- 
urer, showing  that  he  has  paid  into  the  treasury  the 
fees  allowed  by  law  for  the  preceding  month,  except 
such  fees  as  are  a  charge  against  the  county,  accompa- 
nied by  a  statement  of  the  aggregate  amount  thereof, 
as  shown  by  the  fee  book,  duly  verified  by  him  by  his 
affidavit  in  the  form  prescribed  by  law.  {California. 
Sees.  21  J,  2ig,  222  Co.  Govt.  Bill,  Statutes  rSgj,  pp. 
508-510.) 

§  781.    Division  of  County— Salaries.     'When 

the  population  of  any  existing  county  shall  have  been 
reduced,  by  reason  of  the  creation  of  any  new  county 


§§   7^2,    783  FEES    AND    SALARIES. 

from  the  territory  thereof,  below  the  class  and  rank  first 
assumed,  .  .  .  the  salary  of  county  officers,  the 
salaries  of  their  deputies,  clerks  or  assistants,  and  the 
number  of  such  deputies,  clerks  or  assistants,  shall  in 
no  way  be  affected  by  reason  of  such  division  of  the 
county  or  order  of  the  Board  of  Supervisors  for  the 
term  for  which  they  were  elected  and  shall  have  quali-' 
fied.  .  .  .  In  all  newly  created  counties,  for  the 
purpose  of  fixing  the  salaries  and  fees  of  county  and 
township  officers,  the  Board  of  Commissioners  ap- 
pointed to  organize  said  new  county,  and  if  no  Com- 
missioners be  appointed,  then  the  Board  of  Super- 
visors of  said  new  county,  shall  classify  said  new 
count)'."'  [California.  Sec.  2j^  Co.  Govt.  Bill,  Stat- 
utes fSgj,  p.  ^12.) 

§  782.    Salary  during  Erroneous  Suspension. 

— Provision  is  sometimes  made  by  statute  for  the  re- 
moval of  public  officers  for  willful  misconduct.  (See 
Sees.  72-yj,  J ^,  ante.)  After  judgment  of  removal  and 
reversal  of  the  same  on  appeal,  the  officer  is  enti- 
tled to  his  salar\-  during  the  time  of  his  suspension  by 
the  (-rroneoLis  judgment,  e\en  though  another  person 
has  been  paid  for  performing  the  duties  of  the  office  in 
the  meantime.      [Ward  vs.  Marshall,  g6  Cal.  /SS-) 

j  7.S  v     Conveying  Prisoners  and  Insane  Per- 
sons.     I  lie  sheriff  is  (MUilled   "to  receive  and  retain 

lor  his  own  use  %^.oo  per  diejii  for  conveying  prison- 
ers lo  and  (roin  the  slate  prisons  and  for  conveying 
persons  to  and  Irom  the  insane  as\lums  or  other  state 
nisiiiiiiions.  also  all  expenses  necessarily  incurred  in 
c()n\'e\  ing  insane  persons  to  and  trom  the  insane  asy- 
lums, and    in  coiuia  Ing   jx-rsons   lo  and  from  the    state 


FEES    AND    SALARIES.  §§   784,    785 

prisons,  which  per  diein  and  expenses  shall  be  allowed 
by  the  Board  of  Examiners  and  collected  from  the 
state."  {California.  Statutes  i8g^,  p.  507/  Statutes 
i88g,  p.  200. ) 

When  the  salary  of  the  sheriff  is  fixed  by  law,  "in 
full  compensation  for  all  services  rendered,"  etc.,  and  he 
is  required  to  pay  Into  the  county  treasury  all  "fees 
of  whatever  kind  or  nature,"  a  statute  allowino^ 
him,  out  of  the  State  treasury,  expenses  and  per  dief?t 
for  transportation  of  prisoners  and  insane  persons  does 
not  authorize  him  to  appropriate  such  sums  to  his  own 
use  in  addition  to  his  salary  unless  expressly  authorized, 
{Santa  Clara  Co.  vs.  Branham,  77  CaL  5g2.)  Since 
the  decision  in  this  case,  the  California  statute  has  been 
amended  as  above  stated,  so  as  to  allow  all  such  sums 
to  the  sheriff  "for  his  own  use." 

§  784     Sheriff  Entitled  to  Salvage.— "  Sheriffs 

and  all  persons  employed  by  them  or  aiding  in  the  re- 
covery and  preservation  of  wrecked  property,  are  enti- 
tled to  a  reasonable  allowance  as  salvage  for  their  serv- 
ices, and  to  all  expenses  incurred  by  them  in  the 
performance  of  such  services,  out  of  the  property 
saved;  and  the  officer  having  the  custody  of  such  prop- 
erty must  detain  it  until  the  same  are  paid  or  tendered. 
But  the  whole  salvage  claimed  must  not  exceed  one- 
half  of  the  value  of  the  property  or  proceeds  on  which 
it  is  charged;  and  every  agreement,  order  or  adjust- 
ment allowing  a  greater  salvage  is  void,  unless  ordered 
and  allowed  by  the  county  judge."  {California.  Sec. 
2^04  Political  Code.) 

§  785.    Expenses  in  Pursuit  of  Criminals. — 

"  The  Board  of  Supervisors  shall  allow  to  the  sheriff  his 
necessary  expense  for  pursuing  criminals  or  transacting 

31 


§§  786-789  FEES    AND    SALARIES. 

any  criminal  business  without  the  boundaries  of  his 
county."     {California.     Statutes  i8gj,  p.  ^oy.) 

I  786.    No  Mileage  for  Unsuccessful  Pursuit.— 

Under  a  statute  fixing  the  mileage  of  the  sheriff  in 
criminal  cases  and  providing  that  the  supervisors  shall 
allow  him  "his  necessary  expenses  for  pursuing  crimi- 
nals," he  is  not  entitled  to  collect  mileage  for  the  dis- 
tance traveled  in  an  unsuccessful  search  for  persons 
charged  with  crime,  although  the  persons  are  subse- 
quently found  and  arrested  by  him  upon  a  second 
search,  "  though  possibly  he  might  rightly  claim  pay  for 
his  necessary  expenses."  [Overall  vs.  Tulare  Co.,  100 
Cal.  61.)  , 

§  787.    Increase   of    Compensation     During 

Term. — Article  II,  Sec.  9,  of  the  Constitution  of  Cal- 
ifornia provides  that  "the  compensation  of  any  county, 
city,  town  or  municipal  officer  shall  not  be  increased  after 
his  election,  or  during  his  term  of  office;"  but  by  this 
provision  it  is  only  the  compensation  for  services  to  be 
rendered,  and  not  traveling  and  other  incidental  ex- 
penses of  the  office,  that  are  forbidden  to  be  raised. 
(Kirkwood  vs.  Soto,  Sy  Cal.  jg^. ) 

i  788.    Salaries  of  Constables  Not  to  be  Fixed 

by  Supervisors. — A  constitutional  provision  for  the 
regulation  by  the  Legislature  of  the  compensation  of 
officers  therein  named  is  mandatory,  and  such  regula- 
tion cannot  be  delegated  to  the  Board  of  Supervisors, 
t\  (^.,  the  fixing  of  the  salaries  of  constables  in  Califor- 
nia.    [People  ex  re  I.    At  kins  071  vs.    Johnso7i,  95  Cal. 

%  789.    Bill  against  County  to  be  Itemized. — 

"The  Board  of  Sujicrvisors  must  not  hear  or  consider 


FEES    AND    SALARIES.  §§  79O-792 

any  claim  in  favor  of  any  person,  corporation,  company 
or  association  against  the  county,  nor  shall  the  Board 
credit  or  allow  any  claim  or  bill  against  the  County  or 
District  Fund,  unless  the  same  be  itemized,  giving 
names,  dates  and  particular  services  rendered;  charac- 
ter of  process  served;  upon  whom;  distance  traveled; 
where  and  when;  character  of  work  done;  number  of 
days  engaged;  materials  furnished;  to  whom;  and  quan- 
tity and  price  paid  therefor,  duly  verified  as  to  its  cor- 
rectness, and  that  the  amount  claimed  is  justly  due,  is 
presented  and  filed  with  the  clerk  of  the  Board  within 
a  year  after  the  last  item  of  the  account  or  claim  accrued." 
{California.     Sec.  41  Co.   Govt.   Bill,   Stats.   i8gj,  p. 

3^3-) 

I  790.    Fraudulent  Bills  against  County. — If 

the  sheriff  present  to  the  Board  of  Supervisors  any 
false  or  fraudulent  claim,  bill,  account,  voucher  or 
writing,  he  is  guilty  of  a  felony.  [California.  Sec.  y2 
Penal  Code.) 

§  791.     Allowance   of    Claims    against    the 

County.— All  accounts  of  the  sheriff  for  services  per- 
formed by  him  and  chargeable  against  the  county,  must 
be  presented  to  and  allowed  by  the  Board  of  Super- 
visors in  the  same  manner  as  other  claims.  [California. 
Stats.  i8gj,  p.  511.) 

§  792.    No  Fees  in  Habeas  Corpus  Cases.— It  is 

usually  provided  by  statute  that  no  fees  are  to  be  col- 
lected for  the  service  of  any  process  in  habeas  corpus, 
or  no  provision  is  made  in  the  respective  fee  bills  for 
the  collection  of  any  fees. 

California.  Sec.  4jjj  Penal  Code;  Sec.  228  Co. 
Govt.  Bill. 

Idaho.     Sec.  2ij8  Rev.  Stats.  i88y. 


I 


CHAPTER    XXXI. 


SHERIFFS    AND  CONSTABLES    FORMS. 

NoTE.-r-These  forms  are  adapted  to  the  practice  in  California. 
In  other  states  care  should  be  taken  to  make  such  changes  as 
may  be  necessary  to  conform  them  to  the  local  statutes.  A  full 
list  and  index  of  these  forms  will  be  found  at  the  end  of  this  vol- 
ume. 

§  793.    Return  on  Summons — One  Defendant, 

[^California?) 

Sheriff's   Officfi,  \  _  ^ 
County  of I 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  summons  on  the  .... 
day  of  .  .  .  . ,  18..,  and  personally  served  the  same 
upon  John  Doe,  the  within  named  defendant,  by  de- 
livering to  and  leaving  with  said  defendant,  person- 
ally, in  the  County  of  .... ,  on  the  ....  day  of 

18.  .,  a  copy  of  said  summons,  attached  to  a  copy  of 
the  complaint  referred  to  in  said  summons. 

Dated ,  18.  .. 

Sheriff, 

l^y ,  Deputy  Sheriff. 

Sheriff's  Im-cs,  % 

Note. — Althoujjh  tlie  languaji;e  of  the  statute  does  not  in 
express  terms  declare  that  the  coj)y  of  summons  delivered  to  a 


sheriffs'  AM)  constables'  FORMS.    §§  794,  795 

•defendant  must  be  left  with  him,  yet  it  is  obvious  that  the  spirit 
of  the  law  would  be  violated  if  the  copy  were  immediately  taken 
from  the  defendant  by  the  person  making  the  service;  and 
it  is  therefore  deemed  best  that  the  return  of  service  should  show 
that,  not  only  the  letter  of  the  law,  but  its  intent,  has  been  com- 
plied with. 

§  794.      Return    on    Summons  -Several    De- 
fendants.    ( Calif 0  rn  ia . ) 

Sheriff's   Office,  \  . . 
County  of j      * 

I. Sheriff  of  the  County  of ,  hereby 

■certify  that  I  received  the  within  summons  on  the  .... 
day  of  ....,  18..,  and  personally  served  the  same 
upon  the  hereinafter  named  defendants  by  delivering 
to  and  leaving  with  each  of  said  defendants,  person- 
ally, in  the  County  of.  ... ,  at  the  time  set  opposite 
theirr  names,  respectively,  a  copy  of  said  summons  at- 
tached to  a  copy  of  the  complaint  referred  to  in  said 
summons. 

Names  of  Defendants  Served.      Time  of  Service. 


Dated,   ,18... 

,  Sheriff. 

By Deputy  Sheriff. 

Sheriff's  Fees,  $ 

§  795.    Return  on  Summons— Some  Defend- 
ants Not  Served.     [California.) 

Sheriff's  Office,  ^  , 

County  of j    ^* 

I, Sheriff  of  the  County  of hereby 

certify  that  I  received  the  within  summons  on  the  .... 
•day  of 18..,  and   personally  served    the  same 


§  79^  sheriffs'  and  constables'  forms. 

upon  John  Doe,  bne  of  the  within  named  defendants^ 
by  delivering  to  and  leaving  with  said  John  Doe,  per- 
sonally, in  the  County  of  .  .  .  . ,  on  the  ....  day  of 
..  .,  i8..,  a  copy  of  said  summons,  attached  to  a 
copy  of  the  complaint  referred  to  in  said  summons. 

And  I  further  certify  that,  after  due  search  and  dili- 
gent inquiry,  I  have  been  unable  to  find  the  within 
named  Sally  Maguzelum  in  ....  County. 

Dated, 18... 

,  Sheriff 

,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 

§  796.    Return  on  Summons  Served  on  Local 

Corporation.     {^California.) 

Sheriff's   Office,  |  ^^ 
County  of /  "  " 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  summons  on  the  .... 
day  of  .  .  .  . ,  18..,  and  personally  served  the  same 
upon  The  Mud  Springs  Clay  Bank,  a  corporation,  by 
delivering  to  and  leaving  with  Simon  Sudds,  the  pres- 
ident of  said  The  Mud  Springs  Clay  Bank,  a  corpora- 
tion, in  the  County  of  .  .  .  . ,  on  the  ....  day  of  .  .  .  ., 
18.  .,  a  copy  of  said  summons;  and  that  the  copy  so- 
delivered  to  and  left  with  said  Simon  Sudds,  as  presi- 
dent of said  defendant,  was  attached  to  a  copy 

of  the  complaint  referre^d  to  in  said  summons. 

Dated, iS.  .. 

Sheriff. 

By Deputy  Sheriff 

Sheriff's  b'ees.  $ 


SHERIFFS    AND  CONSTABLES    FORMS.  5  797 

Note. — In  California,  the  summons,  in  a  suit  against  a  corpo- 
ration formed  under  the  laws  of  the  State,  must  be  delivered  to 
the  president  or  other  head  of  the  corporation,  secretary,  cashier, 
or  managing-  agent  thereof  The  teller  of  a  bank  is  not  the  man- 
aging agent.  If  the  suit  is  against  a  foreign  corporation,  or  a 
non-resident  joint  stock  company  or  association,  the  summons 
must  be  delivered  to  the  managing  or  business  agent,  cashier  or 
secretary.  {California.  Sec.  ///  Code  Civil  Procedure^  See 
also  Sees.  104-6,  ayite. 

\  797.  Return  on  Summons  Served  on  Minor 
and  Administratrix.  {California.)  See  also  Sees. 
104,  107,  ante. 

Sheriff's  Office,  'y 

County  of j  ' 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  summons  on  the  .... 
day  of  .  .  .  . ,  18,.,  and  personally  served  the  same  on 
the  ....  day  of  .  .  .  .,  i8.  .,  on  Ellen  Brown,  and  also 
on  Ellen  Brown  as  administratrix  of  the  estate  of  James 
Brown,  deceased,  and  also  on  Nellie  B.  Brown,  a 
minor  under  the  age  of  fourteen  years,  and  also  on 
Kate  T.  Brown,  defendants  named  in  said  summons, 
by  delivering  to  and  leaving  with  said  Ellen  Brown, 
personally,  and  in  her  own  right,  in  said  ....  Count) , 
a  copy  of  said  summons,  with  a  copy  of  the  complaint 
in  the  action  named  therein,  and  bv  deliverino^  to  and 
leavintr  with  said  Ellen  Brown  as  administratrix  of  the 
estate  of  James  Brown,  deceased,  personally,  in  said 
county,  a  copy  of  said  summons,  and  by  delivering  to 
and  leaving  with  said  Ellen  Brown,  personally,  as  the 
mother  of  defendant  Nellie  B.  Brown,  a  minor  under 
the  age  of  fourteen  years,  in  said  county,  a  copy  of  said 
summons,  and  by,  at  the  same  time,  delivering  to  and 
leaving  with  said  Nellie  B.  Brown,  a  minor,  as  afore- 
said, personally,  a  copy  of  said  summons,  and  by  deliv- 


§§  798.  799  sheriffs'  and  constahlks'  forms. 

erinof  to  and  leavincr  with  the  defendant,  Kate  T. 
Brown,  personally,  in  said  county,  a  copy  of  said  sum- 
mons. 

Dated  .......  1 8 .. . 

,  Sheriff. 

By Deputy  Sheriff. 

Sheriffs  Fees,  $ 

§  798.    Return  on    Summons  —Defendant  of 

Unsound  Mind.      {California.) 

Sheriff's   Office,  \ 
County  of j 

I, ,  Sheriff  of  the  County  of hereby 

certify  that  I  received  the  within  summons  on  the  .... 

day  of    18,,,   and   personally  serv^ed    the    same 

upon  John  Doe,  the  within  named  defendant,  by  deliv- 
ering to  and  leaving-  with  said  John  Doe,  personally,  in 
the^County  of  .  .  .  . ,  on  the  ....  day  of  .  .  .  . ,  18 .  . ,  a 
copy  of  said  summons,  and  by  delivering  to  and  leav- 
ing with  Richard  Roe,  guardian  of  said  John  Doe,  per- 
sonally,  in   the  County  of    on  the    ....    day  of 

. .  .  . ,  1 8 .  . ,  a  copy  of  said  summons  ;  and  that  the 
copy  so  delivered  to  and  left  with  said  John  Doe  was 
attached  to  a  copy  of  the  complaint  referred  to  in  said 
summons. 

Dated 18... 

Sheriff. 

By Dcrputy  Sheriff. 

Sherifr's  Iv-cs,  $ 


S    7( 


790     Return  on  Summons  Where  Defendant 
Cannot  Be  Found. 

Sheriff's   Office,  | 
/-                  ,-  ss. 

County  of   I 

I, Sheriff  of  the  County  of hereby 


SIIKKIIKS'  AND  CONS  TAHLKs'  FORMS.  §  8oO 

Certify  that  I  received  the  within  summons  on  the  .... 
day  of  .  .  .  . ,  i8.  .,  and  that  after  due  search  and  dili- 
gent inquiry  I  have  been  unable  to  find  the  within 
named  defendant,  Peter  Jones,  in  ....  County. 

Dated i8.  .. 

.Sheriff, 

By ,  Deputy.  Sheriff. 

Sheriff's  Fees,  $ 

§  800.    Return  of  Summons  by  Person  Other 

Than  Officer.  {^California.')  See  also  Sees.  794-8, 
ante. 

In  the  Superior  Court,  County  of  .... ,  State  of 

James  Boggs       \ 

vs.  J 

Richard  Roggs.  ) 

Roothog  R,  Dye,  being  duly  sworn,  deposes  and 
says :  That  he  is,  and  at  all  times  mentioned  herein 
was,  over  the  age  of  eighteen  years,  and  not  a  party 
to  the  within  action  ;  that  he  received  the  within  an- 
nexed summons  on  the  ....  day  of  .  .  .  .,  18.  ,,  and 
personally  served  the  same  upon  Richard  Roggs,  the 
within  named  defendant,  on  the  ....  day  of  ...., 
18..,  by  delivering  to  and  leaving  with  said  Richard 
Roggs,  said  defendant,  personally,  in  the  County  of 
.....  a  copy  of  said  summons,  attached  to  a  copy  of 
the  complaint  referred  to  in  said  summons. 

Subscribed  and  sworn  to  \  Roothog  R.  Dye. 

before    me,   this    ....  J 
day  of  .  .  . . ,  1 8  .  . .         ) 


§§8oi,  802  sheriffs'  and  constables'  forms. 

§  801.    Return  on  Justice's  Court  Summons. 

(California.) 

County  of  .  .  .  . ,  1     ^ 
....  Township,  j 

I  hereby  certify  that  I  received  the  within  summons 
on  the  ....  day  of  .... ,  18..,  and  personally  served 
the  same  by  delivering  to  and  leaving  with  .  .  .  . ,  the 
defendant  named  herein,  personally,  a  true  copy  of  this 
summons,  attached  to  a  true  copy  of  the  complaint 
herein,  in  ....  Township,  ....  County,  this  .... 
day  of  .  .  .  .,  18 .  .. 

,  Constable. 

By ,  Deputy. 

Fees,  $ 

§  802.  Return  on  Justice's  Court  Summons 
from  Another  County. 

Sheriff's   Office,  \ 
County  of )  "   ' 

I  hereby  certify  that  I  received  the  within  summons 
and  certificate  of  the  County  Clerk  of  the  County  of 
.....  on  the  ....  day  of  .  .  .  . ,  18 .  . ;  that  at  the  said 
County  of  .  .  .  .,  on  this  day  of  .  .  .  .,  18.  .,  I  person- 
ally served  said  summons  on  .  ,  .  . ,  the  within  named 
defendant,  by  delivering  to  and  leaving  with  him,  per- 
sonally, a  copy  of  said  summons  and  clerk's  certificate 
attached  thereto,  and  a  copy  of  the  complaint  referred 
to  in  said  summons,  also  attached  thereto. 

Dated  iS.  .. 

Sheriff. 

liy Def)uty  Sheriff. 

Sheriff's  Fees,  $ 


sheriffs'  and  constables'  forms.  §§803,  804 

§  803.    Return  on  Subpoena  in  Civil  Cases. 

Sheriff's   Office,  \ 
County  of j 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  served  the  within  subpoena,  by  showing 
the  said  within  original  to  each  of  the  following  per- 
sons named  therein,  and  delivering  a  true  copy  thereof 
to  each  of  the  said  persons,  personally,  on  the   .... 

day  of A.   D.  18..,  at  the   ....  County  of   ...    , 

to  wit :    .  .  .  . ,  who  did  not  demand  fees,  and , 

who  demanded  and  received  ....  fees,  $ 

Dated, ,  18... 

Sheriffs  Fees  :  ,  Sheriff, 

Service,  $ By ,  Deputy  Sheriff. 

Mileage,  $ 

Total,  $ 

§  804.    Return  by  Citizen  on  Subpoena— Civil 

Case.     {California.) 

State  of  .... ,      ^ 
County  of   j  ' "  * 

.  .  .  . ,  being  duly  sworn,  says :  That  he  served  the 
within  subpoena,  by  showing  the  said  within  original 
to  each  of  the  following  persons  named  therein,  and 
delivering  a  true  copy  thereof  to  each  of  the  said  per- 
sons, personally,  on  the  ....  day  of  .  .  .  .,  a.  d.  18.  ., 
at  the  said  County  of  .  .  .  . ,  to  wit :  .  . . ,  who  did  not 
demand  ....  fees,  and  who  demanded  and  re- 
ceived ....  fees,  $ 

Subscribed  and  sworn  to  before  me,  | 

this  ....  day  of  .  .  .  . ,  a.  d.  ,  1 8 .  . .  |  


§§805,806  sheriffs'  and  constables'  forms. 

§  805.    Return  on  Subpoena  in  Criminal  Case. 

{ California. ) 

State  of y  _ . 

County  of j 

I,    Sheriff  of  the  County  of ,  hereby 

certify  that  I  served  the  within  subpoena,  on  the  .... 
day  of  .  .  .  ,,  18.  .,  on  John  Doe,  Richard  Roe,  and 
Jane  Jenks,  being  the  witnesses  named  in  said  sub- 
poena, at  the  County  of by  showing  the  original 

to  said  witnesses,  personally,  and  informing  them  of 
the  contents  thereof. 

Dated 18.  .. 

Sheriff 

By Deputy  Sheriff. 

.Sheriff's  P'ees,  $ 

§  806.    Return    on  Attachment   of   Personal 

Property.     ( California. ) 

Sheriff's  Office,  ( 
County  of j 

I ,  Sheriff  of  the  County  of ,  do  hereby 

certify  that  under   and    by  virtue    of   the  within  and 
hereunto  annexed  writ  of  attachment,  by  me  received 

on  the    ....    day  of 18...    I   did,  on  the    .... 

day  of    18..,   attach    the    following   described 

personal  property  in  the  possession  of viz.:    .... 

^description  of  property),  and  attached  the  same  by  tak- 
ing into  my  custody  {and  putting  a  keeper  in  charge). 

Dated,   .' ,  18... 

Sheriff. 

By Deputy  Sheriff. 

Sheriff's  Vv.vs,  $ .  . . 


SIlliRIFFs"   ANIJ  constables'   FORMS.    §§807,808 

§  807.    Return  on  Attachment-  Undertaking: 

Given .     ( California. ) 

Sheriff's   Office,  1 
County  ot   j 

I  hereby  certify  that  I  received  the  within  writ  of 
attachment  on  the  ....  day  of  .....  a.  d.  i8.  .,  and 
the  defendant  having  given  me  a  bond,  as  required  in 
said  writ,  in  an  amount  sufficient  to  satisfy  the  demand, 
besides  costs,  I  herewith  return  this  writ  of  attachment 
without  further  service. 

Dated i8.  .. 

,  Sheriff 

By Deputy  Sheriff. 

Sheriff's  Fees,  $.  .. 

§  808.  Return  on  Attachment  of  Real  Estate 
Standing  in  Defendant's  Name-  Property  Occu- 
pied.    {California.) 

Sheriff's   Office,  \  ^^ 
County  of I 

I, ,  Sheriff  of  the  County  of hereby 

certify  and  return  that  I  received  the  hereunto  annexed 
writ  of  attachment  on  the     .  .  .  day  of  .  .  .  . ,  a.  d.  18  .  . , 

and,  by  virtue  of  the  same,  did  on  the  ....  day  of 

a.  D,  18  .  .,  attach  all  the  right,  title,  claim  and  interest  of 
.  . . .,  defendant  (or  either  of  them),  of,  in  and  to  the 
following  described  real  estate,  situated  in  said  County 

of and  State  of  .  .  .  . ,  to  wit :    ....    (description 

of  the  property).  Said  real  estate  standing  on  the  rec- 
ords of  said  county  in   the  name  of was  attached 

as  follows :  By  filing  with  the  recorder  of  said  County 
of  .....  on  the  .  .  .  day  of  .  .  .  . ,  a.  d.  18.  .,  a  copy 
of  the  writ,  together  with  a  description  of  the  propert)' 


§  8o9  sheriffs'  and  constables'  forms. 

attached,  and  a  notice  that  it  is  attached ;  and  by  leav- 
ing a  similar  copy  of  the  writ,  description  and  notice 
with  an  occupant  of  the  property. 

Dated, ,  i8.  .. 

,  Sheriff. 

By ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 

§  S09.    Return  on  Attachment  of  Real  Estate 
Standing  in  Defendant's  Name— No  Occupant. 

{ California. ) 

Sheriff's   Office,  | 
County  of j  " 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return  that  I  received  the  hereunto  annexed 
writ  of  attachment  on  the  ....  day  of  .  .  . . ,  a.  d.  18 .  ., 
and,  by  virtue  of  the  same,  did  on  the  ....  day  of  .  .  . . , 
A.  D.  18.  .,  attach  all  the  right,  title,  claim  and  interest 
of  .  .  .  .,  defendant  (or  either  of  them),  of,  in  and  to 
the  following  described  real  estate,  situated  in  said 
County  of  ....,  State  of  ....,  to  wit:  (descrip- 
tion of  the  property).  Said  real  estate  standing  on 
the  records  of  said  county  in  the  name  of  .  .  .  . ,  was 
attached  as  follows  :  By  filing  with  the  Recorder  of  said 
County  of  .  .  .  .,  on  the  ....  day  of  .  .  .  .,  a.  d.  18.  ., 
a  copy  of  the  writ,  together  with  a  description  of  the 
property  attached,  and  a  notice  that  it  is  attached,  and 
by  posting  a  similar  copy  of  the  writ,  description  and 
notice,  in  a  conspicuous  place  on  the  property  attached, 
there  being  no  occupant. 

Dated 18.  .. 

,  Sheriff 

By ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 


sheriffs'  and  constables'  forms,  §  8 id 

§  8  ID.  Return  on  Attachment  of  Real  Estate 
Standing  in  Name  of  Person  Other  Than  Defend- 
ant.    {Calif or7iia.) 

Sheriff's   Office,  \  ^^ 
County  of j      " 

I ,  Sheriff  of  the  County  of   ,  hereby 

certify  and  return  that  I  received  the  hereunto  annexed 
writ  of  attachment  on  the  .  .  .  day  of  .  .  .  .,  a,  i>.  i8,  ., 
and,  by  virtue  of  the  same,  did,  on  the  ....  day  of 
.  .  .  .,  A.  D.  i8.  .,  attach  all  the  right,  title,  claim  and 
interest  of  ,  .  .  , ,  defendant .  .  (or  either  of  them)  of, 
in  and  to  the  following  described  real  estate,  situated  in 

said  County  of    and  State  of  .  .  .  . ,  to  wit:    .... 

(description  of  the  property).  Said  real  estate  stand- 
ing on  the  records  of  said  county  in  the  name  of  John 
Doe,  was  attached  as  follows:  By  filing  with  the  Re- 
corder of  said  County  of  .  .  .  . ,  on  the  ....  day  of  .... , 
A.  D.  i8.  .,  a  copy  of  the  writ,  together  with  a  descrip- 
tion of  the  property  attached,  and  a  notice  that  all  the 
right,  title  and  interest  of  .  .  .  . ,  said  defendant,  stand- 
ing on  the  records  of  said  county  in  the  name  of  John 
Doe  is  attached;  and  by  leaving  a  similar  copy  of  the 
writ,  description  and  notice  with  an  occupant  of  the 
property  {or  as  the  case  may  be,  posting  a  similar  copy 
of  the  writ,  description,  and  notice  in  a  conspicuous 
place  on  the  property  attached,  there  being  no  occu- 
pant); and  by  delivering  to  and  leaving  with  said  John 
Doe  a  similar  copy  of  the  writ,  description  and  notice. 

Dated, ,  i8.  .. 

,  Sheriff, 

By ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 

Note. — When  the  property  attached  stands  on  the  records  in 
the  name  of  a  person  other  than  a  defendant,  a  copy  of  the  writ, 


§§  8ii        sheriffs'  and  constables'  forms. 

description  and  notice  must  be  left  with  such  other  person  or  his 
agent,  if  known  and  within  the  county,  or  at  the  residence  of 
either,  if  within  the  county.  If  such  other  person  or  his  agent, 
nor  the  residence  of  either,  cannot  be  found,  the  return  should  state 
the  fact  that,  '  'after  due  search  and  diHgent  inquiry  I  have  been 
unable  to  find  said  John  Doe,  nor  any  agent  of  his,  nor  any  resi- 
dence of  either  in county."     {^California.     Sec.  _=j42  Code 

Civil  Procedure. ) 

§  8 1 1 .    Return  on  Garnishment  on  Individual 
with  Statement  of  Garnishee.    {California.) 

Sheriff's   Office,  \   ,^ 
County  of j  ' ' ' 

I, ,  Sheriff  of  the  County  of ,  do  hereby 

certify  and  return  that  I  received  the  hereunto  annexed 

writ  of  attachment  on  the  ....  day  of i8 .  .,  and 

by  virtue  thereof  I  have  duly  attached  all  moneys, 
goods,  effects,  debts  due  or  owing,  or  any  other  personal 
property  belonging  to  the  defendants  therein  named,  or 
either  of  them,  in  the  possession  or  under  the  control 
of  John  Jenks,  by  delivering  to  and  leaving  with  said 
John  Jenks,  personally,  in  ....  County,  on  the  .... 
day  of  .  .  .  .,  A.  D.  i8.  .,  a  copy  of  said  writ  of  attach- 
ment with  a  notice  in  writing  indorsed  thereon  that  such 
jjroperty  was  attached  by  virtue  of  said  writ,  and  not 
to  pay  over  or  transfer  the  same  to  anyone  but  the 
sheriff  of  ....  County,  or  someone  legally  authorized 
to  receive  the  same.  I  also  demanded  a  statement  in 
writing  of  the  amount  of  the  same,  to  which  I  received 
the  following  answer: 

vs.       \ 

To  notice  of  garnishment  and  demand   for  a  state- 
ment served  on  me,  this  ....  day  of   .  .  .  . ,  a.  n.  i8 .  . , 


sheriffs'  and  constables'  forms.  §  8i2 

by  the  Sheriff  of  ....  County,  under  and  by  virtue  of 
an  ....  issued  in  the  above  entitled  cause,  my  answer 
is  that  I  am  ....  indebted  to  . .  .  .,  said  defendant,  in 
the  sum  of  ....  dollars,  and  that  I  have  in  my  posses- 
sion and  under  my  control  ....  personal  property  be- 
longing to  said  defendant,  to  wit:  ....  (description). 

(Signed)   " 

Dated, ,  i8. .. 

,  Sheriff. 

By ,  Deputy  Sheriff. 

§  812.    Return  on  Garnishment  on  Individual 
Who  Made  No  Statement. 

Sheriff's   Office,  \  .^ 
County  of j 

I , ,  Sheriff  of  the  County  of ,  do  hereby 

certify  and  return  that  I  received  the  hereunto  annexed 
writ  of  attachment  on  the  ....  day  of  .  .  .  .,  18.  .,  and 
by  virtue  thereof  I  have  duly  attached  all  moneys, 
goods,  effects,  debts  due  or  owing,  or  any  other  per- 
sonal property  belonging  to  the  defendants  therein 
named  or  either  of  them,  in  the  possession  or  under  the 
control  of  Jacob  Jones,  by  delivering  to  and  leaving 
with  said  Jacob  Jones,  personally,  in  the  County  of  .... , 
on  the  ....  day  of  .  .  .  .,  18.  .,  a  copy  of  said  writ  of 
attachment  with  a  notice  in  writino-  indorsed  thereon 
that  such  property  was  attached  by  virtue  of  said  writ, 
and  not  to  pay  over  or  transfer  the  same  to  anyone  but 
the  sheriff  of  ....  County,  or  someone  legally  author- 
ized to  receive  the  same.  I  also  demanded  a  statement 
in  writino-  of  the  amount  of  the  same,  to  which  said 


32 


§  8i3  sheriffs'  and  constables'  forms. 

Jacob  Jones  has  failed,  neglected  and  refused  to  an- 
swer. 

Dated, ,  1 8 .  . . 

,  Sheriff, 

By ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 

§  813.    Return  on  Garnishment  on  Corpora- 
tion.    ( California. ) 

Sheriff's   Office,!    ^ 
County  of j 

I, ,  Sheriff  of  the  County  of ,  do  hereby 

certify  and  return  that  I  received  the  hereunto  annexed 
writ  of  attachment  on  the  ....  day  of  .... ,  18 .  . ,  and 
by  virtue  thereof  I  have  duly  attached  all  moneys, 
goods,  effects,  debts  due  or  owing,  or  any  other  per- 
sonal property  belonging  to  the  defendants  therein 
named,  or  either  of  them,  in  the  possession  or  under 
the  control  of  The  First  National  Bank  of  Tar  Flat, 
by  delivering  to  and  leaving  with  Oliver  Twist,  presi- 
dent of  said  The  First  National  Bank  of  Tar  Flat,  per- 
sonally, in  the  County  of  ....,  on  the  ....  day  of 
.  .  .  . ,  A.  D.  18 .  . ,  a  copy  of  said  writ  of  attachment,  with 
a  notice  in  writing  indorsed  thereon  that  such  property 
was  attached  by  virtue  of  said  writ,  and  not  to  pay 
over  or  transfer  the  same  to  anyone  but  the  Sheriff  of 
....  County,  or  someone  legally  authorized  to  receive 
the  same.  1  also  demanded  a  statement  in  writing  of 
the  amount  of  the  same,  to  which  I  received  the  fol- 
lowing answer: (answer — see  Sec.  811,  ante). 

Dated 18.  .. 

,  Sheriff. 

By ,  Deputy  Sheriff, 

Sheriff's  I-ees,  $ 


I 


sheriffs'  and  constables'  forms.  §  814 

§  814.    Return  on  Execution— Levy  and  Sale 
of  Personal  Property.    {California.) 


}.. 


State  of  ...  . 
County  of  . . 

I,     ,  Sheriff  of  the  County  of    ,  do  hereby 

certify  that  under  and  by  virtue  of  the  within  and 
hereunto  annexed  writ  of  execution,  by  me  received 
on  the  ....  day  of  .  .  .  . ,  a.  d.  18 .  . ,  I  did,  on  the  .... 
day  of  .  .  .  .,  A.  D.  18.  .,  levy  upon  the  personal  prop- 
erty hereinafter  described,  and  noticed  the  same  for 
sale  as  the  law  directs  (by  posting  written  notice  of  the 
time  and  place  of  sale),  particularly  describing  the 
property,  for  ....  days  successively,  in  three  public 
places  of  the  township  or  city  where  said  property  was 
sold,  and  on  .  .  .  .,  the  ....  day  of  .  .  .  .,  a.  d.  18. ., 
at  ....  o'clock,  .  .  M.  of  said  day,  ...  (place  of  sale), 
in  said  county,  the  time  and  place  fixed  for  said  sale,  I 
did  attend  and  offered  for  sale  at  public  auction,  for 
United  States  gold  coin,  the  property  described :  .  . .  . 
(description).  And  sold  the  whole  of  the  same  in  .... 
separate  parcels  to  various  purchasers  for  the  sum  of 
....  dollars,  in  United  States  gold  coin,  said  purchas- 
ers being  the  highest  bidders,  and  said  sum  being  the 
highest  bid,  in  the  agfereorate,  for  the  same ;  and  I  have 
given  such  purchaser,  .  . .  . ,  a  certificate  of  said  sale. 
(Here  state  satisfaction  of  the  judgment,  or  otherwise, 
as  indicated  in  form  of  return  on  levy  and  sale  of  real 
estate.     See  Sec.  '^i^,  post.) 

And  I  further  certify  that  I  deducted  from  the  said 
sum  of  $....,  my  fees,  commission  and  expenses, 
amounting  to  the  sum  of  $....,  leaving  a  net  balance 


§  8i5  sheriffs'  and  constables'  forms. 

of  $....,    which   I    have   paid    to  plaintiff's  attorney^ 

whose  receipt  therefor  is  hereto  attached. 

Dated, ,  i8.  .. 

,  Sheriff. 

By ,  Deputy  Sheriff. 

§  815.    Return  on  Execution — Levy  and  Sale 

of  Real  Estate.     {California.) 


State  of  . 


of  x 

y  of ,  j 


r^  r  f  SS. 

County 

I , ,  Sheriff  of  the  County  of ,  do  hereby 

certify  that  under  and  by  virtue  of  the  within  and  here- 
unto annexed  writ  of  execution,  by  me  received  on  the 
....  day  of  .  .  .  . ,  A.  D.  18 .  . ,  I  did,  on  the  ....  day 
of  ....,  A.  D.  18..,  levy  upon,  the  lands  hereinafter 
described,  and  noticed  the  same  for  sale  as  the  law 
directs  (by  posting  written  notice  of  the  time  and  place 
of  sale,  particularly  describing  the  property,  for  twenty 
days  successively  in  three  public  places  of  the  township 
or  city  where  said  property  is  situated,  and  also  where 
said  property  was  to  be  sold,  and  publishing  a  copy 

thereof  once  a  week  for  the  same  period  in  the 

a  newspaper  published  in  said  County  of  ....),  and  on 
.  .  .  . ,  the  ....  day  of  .  .  .  . ,  a.  d.  i  8 .  . ,  at  ....  o'clock 
.  .  M.  of  said  day,  in  front  of  the  Court  House  door  of 
said  county,  the  time  and  place  fixed  for  said  sale,  I 
did  attend  and  offered  for  sale  at  public  auction,  for 
United  States  gold  coin,  the  property  described  :  .... 
(description).  And  sold  the  whole  of  the  same  to  .  .  .  . , 
for  the  sum  of  ...  .  dollars,  in  United  States  gold  coin, 
said  ....  being  the  highest  bidder,  and  said  sum  being 
the  highest  bid  for  the  same  ;  and  1  have  given  said 
purchaser,  .  .  .  . ,  a  certificate  of  .said  sale,  and  have  filed 


sheriffs'  and  constables'  forms.  §  8i6 

a  duplicate  thereof  for  record  with  the  Recorder  of  said 
County  of  .  .  .  . ;  and  I  herewith  return  said  writ  fully 
satisfied.  (If  the  proceeds  of  sale  do  not  satisfy  the 
judgment,  omit  the  last  clause  to  that  effect,  and  state 
that,  "after  due  search  and  diligent  inquiry,  I  have  been 
unable  to  find  any  other  property  belonging  to  the 
within  named  defendants,  or  either  of  them,  not  exempt 
from  execution,  in  ....  County,  out  of  which  to  make 
the  remainder  of  said  judgment,  or  any  part  of  such 
remainder,  and  herewith  return  said  writ  partly  satis- 
fied, to  wit :  in  the  sum  of  $ ") 

And  I  further  certify  that  I  deducted  from  the  said 
sum  of  $....,  my  fees,  commission  and  expenses, 
amounting  to  the  sum  of  $....,  leaving  a  net  balance 
of  $  .... ,  which  I  have  paid  to  plaintiff's  attorney, 
whose  receipt  therefor  is  hereto  attached. 

Dated, i8.  .. 

,  Sheriff". 

By   ,  Deputy  Sheriff. 

§  8 1 6.    Return  on  Foreclosure. 

Sheriff's   Office,  ) 
County  oi j 

I, ,  Sheriff  of  the  County  of do  hereby 

certify:  That  by  virtue  and  in  pursuance  of  the  annexed 
order  of  sale  and  decree  of  foreclosure  and  sale,  I  ad- 
vertised the  property  described  as  follows,  to  wit:  .... 
(description),  to  be  sold  by  me  in  front  of  the  Court 
House  door  in  the  City  of  .... ,  County  of  .  .  .  . ,  on  the 
....  day  of  .  .  .  . ,  A.  D.  1 8 .  . ,  at  ....  o'clock  .  .  m.  ; 
that  previous  to  said  sale  I  posted  written  notice,  par- 
ticularly describing  the  property,  for  twenty  days,  in 
three  public  places  of  the  township  or  city  where  the 
property  is  situated,  and  also  where  the  property  was 


§  8i7  sheriffs'  and  constables'  forms. 

to  be  sold;  and  also  caused  due  and  lep-al  written  notice 
thereof  to  be  published  once  a  week  for  the  same  pe- 
riod, preceding  said  sale,  in  the  .  .  .  . ,  a  ....  newspaper 
published  in  the  County  of  .  .  .  .,  and  that  on   ...    ,  the 

....    day  of ,    i8 .  .,   the  day  on  which  said 

premises  were  so  advertised  to  be  sold  as  aforesaid,  I 
attended  at  the  time  and  place  fixed  for  said  sale,  and 
exposed  the  said  premises  for  sale  in  ....  parcel  .... 
at  public  auction,  according  to  law,  to  the  highest  bid- 
der for  cash  ....  when  .  .  .  . ,  being  the  highest  bidder 
therefor,  the  said  premises  were  struck  off  by  me  to  the 
said  .  . . .,  for  the  sum  of  ...  .  dollars,  in  United  States 
gold  coin,  which  was  the  whole  price  bid,  and  which  I 
acknowledge  to  have  received;  and  that  I  delivered  to 
said  purchaser  a  certificate  of  said  sale,  and  filed  a  du- 
plicate thereof  in  the  office  of  the  County  Recorder  of 
the  said     ...  County. 

And  I  further  certify  that  I  deducted  from  the  said 
sum  of  $.  .  .  .  my  fees,  commission  and  expenses, 
amounting  to  the  sum  of  $....,  leaving  a  net  balance 
of  $....,  which  net  balance  I  have  paid  to  plaintiff's 
attorney,  whose  receipt  therefor  is  hereto  attached. 

(Here  state  the  satisfaction  of  judgment  or  amount 

of  deficiency,  as  the  case  may  be.     See  Sec.  815,  ante.) 

Dated, ,  18... 

Sheriff. 

By Deputy  Sheriff*. 

§  817.  Return  on  Replevin  Property  Deliv- 
ered to  Plaintiff.     {California.) 

Sheriff's   Office,  | 
Lcjunty  01 ) 

I Sheriff  of  the  County  of ,  hereby 

certify  and  rc^tiini,  thai  on  the  ....  day  of  .  .  .  . ,   18.  ., 


sheriffs'  and  constables'  forms.  §  8i8 

I  executed  the  order  indorsed  hereon,  for  delivery  of 
the  personal  property  mentioned  in  the  within  affidavit, 
by  taking  possession  of  the  same  (or  all  thereof  to  be 
found  in  my  county),  to  wit:  ....  (description  of  prop- 
erty taken),  and  at  the  same  time  I  delivered  to  the  de- 
fendant, Jonathan  Wild,  a  copy  of  the  within  affidavit 
and  order,  and  undertaking  duly  approved  by  me,  and 
defendant  having  failed  to  except  to  the  surety  therein, 
and  also  having  omitted  to  require  a  return  of  said 
property,  and  no  other  person  than  the  defendant  hav- 
ing made  claim  thereto,  I  did  at  the  expiration  of  the 
time  prescribed  by  the  statute  for  seeking  such  delivery 
and  making  such  claim,  to  wit:  on  the  ....  day  of  .... , 
i8.  .,  deliver  the  property  so  taken  to  the  plaintiff,  as 
by  said  order  I  am  commanded. 

Dated, ,  i8.  .. 

,  Sheriff, 

By ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 

§  8i8.     Return    on    Replevin — Property   Re- 
delivered to  Defendant.     ^California.) 

Sheriff's   Office,  1 
County  of ]'   ' 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return,  that  on  the  ....  day  of  .  .  .  . ,  i8 .  ., 
I  executed  the  order  indorsed  hereon,  for  delivery  of 
the  personal  property  mentioned  in  the  within  affidavit, 
by  taking  possession  of  the  same  (or  all  thereof  to  be 
found  in  my  county),  to  wit:  ....  (description  of  prop- 
erty taken),  and  at  the  same  time  I  delivered  to  the 
defendant,  Jonathan  Wild,  a  copy  of  the  within  affi- 
davit and  order  and  undertaking,  duly  approved  by  me. 


§  8l9  -SPiERIFFS'  AND  CONSTABLES'  FORMS. 

and  the  defendant  not  having  excepted  to  such  surety, 
claimed  the  redelivery  of  said  property  by  giving  me 
an  undertaking  in  due  form,  and  the  sureties  thereon 
having  justified,  and  no  other  person  having  made 
claim  to  said  property  in  due  form  of  law,  I  redelivered 
the  said  property  to  the  defendant. 

Dated, .18.., 

,  Sheriff. 

By ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 

§  819.    Return  on  Writ  of  Restitution. 

Sheriff's   Office,  |    ,^ 
County  of j  " ' 

I, ,  Sheriff  of  the  County  of ,  do  hereby 

certify  that  under  and  by  virtue  of  the  within  writ  of 
restitution,  by  me  received  on  the  ....  day  of  .  .  .  . , 
18.  .,  I  served  the  same  on  the  ....  day  of  .  .  . .,  18.  ., 
by  placing  the  within  named  ....  in  quiet  and  peace- 
able possession  of  the  lands  and  premises  therein  de- 
scribed. (I  further  certify  that  after  due  search  and 
diligent  inquiry  I  have  been  unable  to  find  any  property 
belonging  to  the  within  named  defendant,  in  .... 
County,  not  exempt  from  execution,  out  of  which  to 
mak('  the  within  money  judgment,  or  any  part  thereof, 
and  I  herewith  return  said  writ  without  further  service, 
fully  satisfied  as  to  the  plaintiff's  possession  of  the 
lands  and  {.remises  therein  described,  and  wholly  unsat- 
isfi(::d  as  to  said  monc\"  judgment.) 

Dated,   iS.  .. 


Sheriff, 

I  Jcpiily  Shcrift'. 


Sheriff's  I'C('s,  $. 


sheriffs'  and  cOx\stables'  forms.  5  820 

Note. — If  any  money  is  made  by  levy  and  sale,  or  otherwise, 
the  return  as  to  the  money  judgment  will  be  the  same  as  in  return 
on  writs  of  execution.  If  the  officer  put  the  plaintiff's  agent  in 
possession,  the  return  should  show  that  the  writ  was  served  "by 
placing  the  within  named  plaintiff,  by  his  agent,  John  Roe,  in 
quiet  and  peaceable  possession,"  etc. 

§  820.  Return  on  Writ  of  Restitution— Not 
Served,  Strangers  in  Possession. 

Sheriff's   Office,  ) 
County  of j  ' ' ' 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return  that  I  received  the  within  hereunto 
annexed  writ  of  restitution  on  the  ....  day  of  .  .  .  . , 
18.  .,  and  that  on  the  ....  day  of  .  .  .  .,  18.  .,  I  pro- 
ceeded to  the  premises  therein  described  for  the  pur- 
pose of  serving  said  writ,  and  that  neither  H.  F.  Lara- 
bee,  the  within  named  defendant,  nor  any  agent  of  said 
Larabee,  was  then  or  has  been  since  in  the  possession  of 
said  premises;  and  that  said  premises  were  in  the  pos- 
session of  and  occupied  by  L.  H.  Brown,  who  then  and 
there  claimed  possession  thereof  as  heir  of  George  Brown, 
deceased,  owner  in  fee  simple  of  said  premises,  and  also 
claimed  possession  of  said  premises  as  executor  of  the 
last  will  of  George  Brown,  deceased,  owner  in  fee  sim- 
ple of  said  premises;  and  said  L.  H.  Brown,  as  such 
executor,  claimed  possession  and  title  to  the  said  prem- 
ises by  title  superior  to  and  entirely  independent  of 
any  claim  or  title  or  possession  of  plaintiff  or  defend- 
ant named  in  said  writ.  I  further  certify  that,  after  due 
search  and  diligent  inquiry,  I  have  been  unable  to  find 
any  property  belonging  to  the  within  named  defendant, 
in  Alameda  County,  not  exempt  from  execution,  out  of 
which  to  make  the  money  judgment  in  said  writ,  or 


§§821-822  sheriffs'  and  constables'  forms. 

any  part  thereof,  and  I  herewith  return  said  writ  with- 
out further  service,  wholly  unsatisfied. 

Dated, ,  18.  .. 

*        ,  Sheriff, 

By ,  Deputy  Sheriff. 

§821.    Return  on  Writ  of  Assistance. 

(The  same  form  of  return  may  be  used  as  in  writ  of 
restitution,  Sees.  819-820,  ante.  There  is  no  money 
judgment  required^  to  be  made  by  the  writ  of  assistance, 
and  no  return  required  except  as  to  putting  plaintiff  in 
possession.) 

§  821a.    Return  on  Writ  of  Certiorari. 

Sheriff's   Office, 


h 


County  of  '^  " 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  writ  on  the  ....  day 
of  .  .  .  .,  18.  .,  and  served  the  same  on  the  ....  day 
of  .  .  .  .,  18.  .,  by  delivering  to  and  leaving  with  Heze- 
kiah  Lorgs,  personally,  in  ....  County,  a  copy  of  the 
within  writ. 

Dated, ,  18.  .. 

,  Sheriff 

By ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 

§  822.     Search  Warrant.    (See  Sees.  735-741.) 

County  of  .  .  .  .,  I 
....  Township,  j    ' ' 

The  I^eople  of  th(^  State  of   ....  to  any  sheriff,  con- 
stable, marshal,  or  policeman  in  the  County  of  .  .  .  .: 
iVoof,  by  affidavit,  having  been  this  day  made  before 


sheriffs'  and  constables'  forms.  §§823,  824 

me  by  (naming  every  person  whose  affidavit  has  been 
taken),  that  (stating  the  grounds  of  the  appHcation), 
you  are  therefore  commanded,  in  the  daytime  (or  at 
any  time  of  the  day  or  night,  as  the  case  may  be),  to 
make  immediate  search  on  the  person  of  C.  D.  (or  in 
the  house  situated  .  .  .  . ,  describing  it,  or  any  other 
place  to  be  searched,  with  reasonable  particularity,  as 
the  case  may  be),  for  the  following  property:  (describ- 
ing it  with  reasonable  particularity);  and  if  you  find  the 
same,  or  any  part  thereof,  to  bring  it  forthwith  before 
me  at  (stating  the  place). 

Given  under  my  hand,  and  dated  this  ....  day  of 
....  A.  D.  18... 

E.  F.,  Justice  of  the  Peace  (or  as  the  case  may  be), 

§  823.   Return  on  Search  Warrant   [California.) 

County  of  .  ..  .,  1    ^ 
....  Township,  J    ' ' 

I  hereby  certify  that  I  have  served  the  within  war- 
rant, and  have  the  property  described  therein  in  the 
place  designated,  in  the  possession  of  .  .  .  . ,  and  having 
cause  to  believe  that  said  ....  stole  said  property,  I 
have  arrested  him,  and  have  him  with  the  goods  here 
in  court. 

Dated, ,  18.  .. 

,  Constable, 

§  824.  Affidavit  to  Inventory  with  Search 
Warrant.    (California.)    See  Sec,  1537  C,  C.  P, 


County  of 
....  Townsh 


•••'jss. 

ip.  j 


I, ,  the  officer  by  whom  the  warrant  was 

executed,  do  swear  that  the  above  inventory  contains 


§§825,826  sheriffs'  and  constables'  forms. 

a  true  and  detailed  account  of  all  the  property  taken  by 
me  on  the  warrant. 
Subscribed  and  sworn  to  before  me,  ) 
this  ....  day  of  .  .  .  . ,  1 8  .  . .       j 


I 


§  825.    Return  on  Citation. 

Sheriff's   Office,  ) 
County  ot j 

I, ,  Sheriff  of  the  County  of ,  do  hereby 

certify  that  I  served  the  within  citation  on  the  within 
named  .  .  .  ,,  by  delivering  to  .  .  .  .,  personally,  a  copy 
thereof,  on  the  ....  day  of  .  .  .  .,  a.  d.  18.  .,  at  said 
county. 

Dated, ,  18.  .. 

,  Sheriff. 

By ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 

§  826.  Return  on  Service  of  Injunction  on 
Individual. 

Sheriff's   Office,  )  ^^ 
County  of ) 

I ,  Sheriff  of  the  County  of  .  .  .  .,  hereby  cer- 
tify that  I  received  the  annexed  order  of  injunction  on 
the  ....  day  of  .... ,  18..,  and  personally  served  the 

same  (jn  the  ....  day  of 18.  .,  upon  Silas  Snooks, 

defendant,  by  delivering  to  said  Silas  Snooks,  person- 
ally, in  the  County  of  Alameda,  a  copy  of  said  order 
of  injunction  and  of  the  summons,  and  a  copy  of  the 
v(,Tified   coinphiiiil   in  said  action  therein  named. 

Dated iS.  .. 

Sheriff. 

By ,  Deputy  Sheriff. 

Sheriff's  j-ees,  $ 


sheriffs'  and  constables'  forms.  §  827 

?  82  7.    Return  on  Injunction  against  County 

and  Supervisors.      {California.) 

Sheriff's   Office,  \  , . 
County  of j  " " " 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  annexed  writ  of  injunction  on 

the  ....  day  of 18 .  . ,  and  duly  served  the  same 

on  said  ....  day  of  .....  18.  .,  by  personally  deliver- 
ing to  and  leaving  with  each  of  the  following  named 
persons,  as  members  of  the  Board  of  Supervisors  of 
the  County  of  .  .  . ,  in  the  said  County  of  .  .  .  . ,  on 
said  day,  a  copy  of  said  writ  of  injunction  attached  to 
a  copy  of  the  complaint  mentioned  in  said  writ  of  in- 
junction, which  said  copy  of  the  complaint  had  attached 
to  it  the  verification  to  the  original  complaint :  (insert 
names  of  persons  served).  And  I  further  certify  that, 
at  the  time  of  said  service,  said  persons  were  members 
of  the  Board  of  Supervisors  of  the  County  of  .  .  .  . ,  the 
defendant  named  in  said  writ  of  injunction  and  com- 
plaint, and  that  said  persons  were  so  served  as  mem- 
bers of  said  board. 

And  I  further  certify  that  I  served  the  said  writ  of 
injunction  on  the  defendant,  "The  County  of  .  .  ," 
on  the  ....  day  of  .  .  .  . ,  18 .  .,  by  personally  deliver- 
ing to  and  leaving  with  .  .  .  . ,  president  of  the  Board  of 
Supervisors  of  said  County  of  .  .  .  . ,  a  copy  of  said 
writ  of  injunction  attached  to  a  copy  of  the  complaint 
mentioned  in  said  writ  of  injunction,  which  said  copy 
of  the  complaint  had  attached  to  it  a  copy  of  the  veri- 
fication to  the  original  complaint. 

Dated, ,  18.  .. 

,  Sheriff 

By ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 


§§828,  829  sheriffs'  and  constables'  forms. 

§  828.  Return  on  Habeas  Corpus— Prisoner 
in  Custody. 

Sheriff's   Office,  1^ 
County  of j 

I, ,  Sheriff  of  the  County  of  .  .  .  .,  do  hereby 

return  to  the  Honorable  Judge  of  the  Superior  Court 
of  ....  County,  that  before  the  coming  to  me  of  the 
within  writ,  the  said  Petroleum  V,  Nasby  was  com- 
mitted to  my  custody,  and  that  he  now  is  detained  by 
virtue  of  a  commitment,  a  copy  of  which  is  hereto 
annexed,  the  original  of  which  I  also  herewith  produce; 
nevertheless  I  have  the  body  of  the  said  Petroleum 
V.  Nasby  before  you  at  the  time  and  place  within  men- 
tioned, as  I  am  within  commanded. 

Dated, ,  18... 

,  Sheriff. 

By ,  Deputy  Sheriff. 

§  829.  Return  on  Habeas  Corpus— Prisoner 
Released  on  Bail. 

Sheriff's   Office,  \  ^^ 
County  of j 

I, ,  Sheriff  of  the  County  of ,  in  obe- 
dience to  the  order  contained  in  the  within  writ,  do 
hereby  return    to    the    Honorable   ....   Court  of  the 

County  of State  of  .....  that  before  the  coming 

to  me  of  the  said  writ,  the  said  ....  was  committed  to 
my  custody  by  virtue  of  a  commitment,  a  copy  of 
which  is  hereto  ;uinex(xl,  the  original  of  which  I  also 
produce ;  and  that  said  ....  has  been  allowed  to  go 
u[)on   hail  approved   by  a  judge  of  the  ....    Court  of 


sheriffs'  and  constables'  forms.  §§830,  831 

the  County  of  ...  .  in  said  State,  the  bail  bond  whereof 

is  filed  with  the  clerk  of  said  Court. 

Dated, ,  18. .. 

Sheriff 

By ,  Deputy  Sheriff 

§  830.    Return  on  Habeas  Corpus— ^Prisoner 
Held  on  Oral  Charge. 

Sheriff's   Office,  \ 
County  of  ......  j  ■^'  ■ 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  make  return  to  the  writ  of  habeas  corpus  in 
the  matter  of  the  application  of  ....  in  the  .... 
Court  of  the  County  of  .  .  .  . ,  as  follows,  to  wit :  That 
on  the  ....  day  of  .  .  .  .,  18..,  I  received  into  my 
custody  the  said  .  .  .  .,  and  he  was  so  placed  in  my 
charge  and  custody  by  one  .  .  .  . ,  Constable  of  .... 
Township,  of  the  County  of  .  .  .  .,  and  on  the  said  re- 
ceipt of  said  ....  and  the  placing  of  said  ....  into  my 
custody  by  said  .  .  .  .,  he,  the  said  .  .  .  .,  placed  a 
charge  and  charged  said  ....  with  the  crime  of  .... , 
and  under  and  by  virtue  of  said  charge  so  preferred  by 
said  .  .  .  . ,  and  by  the  law  in  such  cases  made  and  pro- 
vided, and  by  no  other  warrant  or  process,  I  hold  said 
....  in  my  custody. 

Dated, ,  18.  .. 

,  Sheriff 

By ,  Deputy  Sheriff 

§  831.    Return  on  Habeas  Corpus — Prisoner 
Held  on  Judgment  Pending  Appeal. 

Sheriff's   Office,  1 
County  of  .....  j 

I,    ,   Sheriff   of  the    County    of    ,  do 


§  832  sheriffs'  and  constables'  forms. 

hereby  return  to  the  Honorable  ....,  Judge  of  the 
....  Court  .  .  .  . ,  that  before  the  coming  to  me  of  the 
within  writ,  the  said  ....  was  committed  to  my  cus- 
tody, and  is  detained,  by  virtue  of  an  order  made  by 
the  Honorable  .  .  .  .,  Judge  of  the  ....  Court  of  .... 
County,  a  certified  copy  of  which  is  hereto  annexed ; 
and  that  said  ....  is  held  in  my  custody  under  and  by 
virtue  of  a  judgment  in  the  case  of  the  People  of  the 
State  of  ....  against  .  .  .  . ,  in  the  ....  Court  of  the 
County  of  .  .  .  .,  a  certified  copy  of  which  judgment  I 
herewith  produce ;  and  that  said  ....  is  also  detained 
by  me  by  virtue  of  a  certificate  of  probable  cause,  made 
by  the  Honorable  .  .  .  .,  Judge  of  the  ....  Court  of  the 
State  of  .  .  .  .,  and  dated  .  .  .  .,  18.  .,  for  the  appeal 
prosecuted  by  said  ....  to  the  Supreme  Court  of  the 
State  of  .  .  .  .,  a  copy  of  which  certificate  is  hereto  an- 
nexed : 

Nevertheless,  I  have  the  body  of  the  said  ....  be- 
fore you  at  the  time  and  place  within  mentioned,  as  I 
am  within  commanded. 

Dated, ,  18... 

,  Sheriff. 

By ,  Deputy  Sheriff. 

?  832.  Return  on  Habeas  Corpus— Prisoner 
Held  by  U.  S.  Court. 

Sheriff's    Office,  | 
County  of j  '  " 

To    the    Honorable     ....    Court  of   the  County    of 

.....  .State  of  .  .  .  .: 

In  return  to  the  writ  of  habeas  corpus  issued  to  me, 
commanding  mc  to  j)r()duce  before  your  Honorable 
Court  the   body  of   now  in  my  custody,  I  hereby 


sheriffs'  and  constables'  forms.  §  83J 

produce  and  return  to  you  a  certified  copy  of  an  order 
of  the  ....  Court  of  the  United  States  for  the  .... 
District  of  .....  made  on  the  ....  day  of  .  .  .  .,  18.  ., 
by  which  order  the  said  ....  was  ordered  to  be  im- 
prisoned in  the  County  Jail  of  ...  .  County ,  and 

under  which  he  was  committed  to  my  custody  on  the 
....  day  of  ...  .    18.  .,  by  the  United  States  Marshal 

for  the  said    ....    District  of and  by  virtue  of 

which  order   I    now  hold  said    I    further  certify 

that  I  also  hold  said  ....  in  my  custody  in  obedience 
to  two  certain  further  orders  of  said  ....  Court,  certi- 
fied copies  of  which  I  also  herewith  produce,  marked 
respectively  "  Order  to  Show  Cause  and  Restraining; 
Order,"  and  "Certified  Copy  of  Order." 

I  return  said  certified  copies  of  said  orders  as  a  suffi- 
cient return  to  said  writ  and  all  that  I  am  authorized 
to  return  by  law.  (See  Abehnan  vs.  Booth,  21  How- 
ard, U.  S.  ^06,  and  Tarbles  Case,  /j>  Wallace,  U.  S, 
jgy. )     So  answers  : 

Dated 18.  .. 

Sheriff. 

By ,  Deputy  Sheriff. 

§  833     Return  on  Warrant  of  Arrest. 

Sheriff's  Office.  | 
County  of j  ' 

I   hereby  certify  that   I   received  the  within  warrant 

on  the  ....  day  of 18 .  .,  and  served  the  same  by 

arresting  the  within  named  defendant  on  the  ....  day 
of  .  .  .  .,  18.  .,  and  bringing  him  into  court  this  .... 
day  of  .... ,  18... 

,  Sheriff 

B)' Deputy  Sheriff. 


3Z 


^§834.835  sheriffs'  and  constables'  forms. 

§  834.    Return  on  Warrant — Defendant    Re- 
leased on  Bail. 

Sheriff's   Office,  |  ^^ 
County  of j    ' ' 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  have  served  the  within  warrant  by  arrest- 
ing the  within  named  defendant,  .  .  .  .,  on  the  .... 
day  of  .... ,  18..;  and  said  defendant  having  given 
the  required  bail,  in  the  sum  of  ...  .  dollars,  with  .... 
and  ....  as  sureties,  and  said  bail  having  been  ap- 
proved by  the  Honorable  .  .  .  .,  Judge  of  the  .... 
Court  of  the  County  of I  have  released  said  de- 
fendant from  custody. 

Dated, ,  r8.  .. 

,  Sheriff. 

By Deputy  Sheriff. 

5  ^3S-    Certificate  of  Surrender  of  Prisoner 
by  Bondsmen. 

Sheriff's   Office,  \  ,. 
County  of j  ' ' ' 

,   one  of  the  sureties  upon  the  bail  bond  of 

.  .  .  .,  charged  ....  (state charge  against  prisoner),  hav- 
ing delivered  to  me  a  certified  copy  of  the  bail  bond  of 
.  .  .  .,  together  with  his  statement  in  writing,  surrender- 
ing said and  I,  having  thereupon  taken  in  cus- 
tody the  said  whom  I  now  hold,  I  do  now  cer- 
tify and   by  this  certificate  acknowledge  that  said  .... 

has  surrendered  the  said and  that  said    ....    is 

now  in  my  custody. 

Dated 18.  . 

Sheriff 

i^y Deputy  Sheriff. 


sheriffs'  and  constables'  forms.  §§836,  837 

§  836.    Return  on  Order  of  Arrest — Prisoner 
Discharged  on  Habeas  Corpus  and  Bail  Given. 

Sheriff's   Office,  | 
County  of j 

I, Sheriff  of  the  County  of ,  hereby 

■certify  and  return  that  I  received  the  within  annexed 
certified  copy  of  Order  and  Judgment  on  the  ....  day 
of  .  .  ,  .,  18.  .,  and  served  the  same  by  arresting  the 
therein  named  ....  on  said  ....  day  of  .  .  .  .,  18.  ., 
and  taking  him  into  my  custody ;  and  that  I  held  and 
detained  him  in  my  custody  under  said  order  and  judg- 
ment, until  he  was,  in  due  form  of  law,  removed  from 
my  custody  by  writ  of  habeas  corpus,  on  said  ....  day 
of  .  .  .  .,  18.  .,  granted  by  Honorable    .  .  .  .,  Associate 

Justice   of  the  Supreme  Court  of  the  State  of , 

and  was  then  and  there  discharged  from  such  arrest, 
by  an  order  contained  in  said  writ  admitting  said  .... 
to  bail  in  the  sum  of  ...  .  dollars. 

Dated, ,  18.  .. 

,  Sheriff. 

By ,  Deputy  Sheriff. 

§  837.  Return  on  Order  of  Arrest — Arrest 
and  Bail  in  Justice's  Court.    {California.) 

County  of  .  .  .  .,  ) 
....  Township.  /  ' ' " 

I  hereby  hereby  certify  that  I  have  served  the  above 
order,  by  arresting  and  bringing  into  court  the  said 
.  .  -  . ,  this  ....  day  of  .  .  .  . ,  a.  d.  1 8 .  . ,  at  .  .  .  .  o'clock 
-  .  M.,  and  that  I  have  notified  the  plaintiff  thereof. 

Constable. 

By Deputy. 


§§838,839    sheriffs'  and  CONSTAHLEs'    hOK.MS. 

§  838.    Return  on  Venire  for  Jurors. 

Sheriff's   Office,  1 
,^               r  y  SS. 

County  01 ) 

I, Sheriff  of  the  County  of   .......  hereby 

certify  that  I  received  the  within  and  hereunto  annexed 
venire  for  ....  jurors,  on  the  ....  day  of  .  .  .  . ,  a.  d. 
18.  .,  and  by  virtue  of  the  same  have  personally  sum- 
moned the  hereinafter  named  persons  to  be  and  appear 
at  the  time  and  place  therein  named,  to  act  as  .... 
jurors.  I  also  certify  that  they  were  summoned  at  the 
time  and  in  the  manner  set  opposite  their  respective 
names,  viz.:  by  leaving  with  them  personally,  when 
they  could  be  found,  the  notice  required  by  statute,, 
and  when  they  could  not  be  found,  by  leaving  such 
notice  at  their  respective'places  of  residence  with  some 
person  of  suitable  age. 

Names.   |    Manner  of  Service.   |    Time  of  Service,   j   No.  Miles. 

Dated 18.  .. 

,  Sheriff. 

By Deputy  Sheriff 

§  839.     Return  onJDeath  Warrant. 

Sheriff's  Office,  (  . . 

Countv  of  Alameda.  |  " " " 

I,  Charles  McCleverty,  Sheriff  of  the  County  of 
Alameda,  do  hereby  certify  and  return  that  I  received 
the  within  warrant  on  the  3d^day  of  January,  a.  d.  1884, 
and  that,  in  compliance  with  three  certain  orders  of 
reprieve,  granted  by  the  Honorable  George  Stoneman, 


SUKRIKKS'   AMI)  CONSTAHIKS'    FORMS.  §  ^4© 

Governor  of  the  State  of  California,  and  issued  under 
the  great  seal  of  the  State  of  California,  and  delivered 
to  me,  the  execution  of  the  within  named  Lloyd  L. 
Majors,  was  postponed  by  me  until  the  23d  day  of 
May.  A.  I).  1884,  on  which  said  last  named  day,  between 
the  hours  of  9  o'clock  in  the  forenoon  and  4  o'clock  in 
the  afternoon  of  said  day,  to  wit:  between  the  hours  of 
II  and  12  o'clock  of  said  day,  in  pursuance  of  said 
warrant  and  reprieves,  said  Lloyd  L.  Majors  was  ex- 
-ecuted  by  me,  as  such  sheriff,  by  hanging  by  the  neck 
until  he  was  dead,  in  the  jail  yard  of  the  jail  of  said 
County  of  Alameda;  and  that  said  execution  was  con- 
ducted in  conformity  to  the  provisions  of  law  of  this 
State  concerning  capital  punishment,  and  of  the  sen- 
tence referred   to   in  said   warrant. 

Dated  at  Oakland,  this  24th  day  of  May,  a,  d.,  1884. 
Charles  McClevertv,  Sheriff. 


§  840.    Return  on  Notice  of  Land  Office  Con- 
test. 

State  of  California,  ) 
County  of  .....       1  '    ■ 

,  being  duly  sworn,  says  that  he  is  acquainted 

with named  within,  in  the  contest  of  ....  z/^- ; 

that  he  served    the  notice  of   contest  herein  on  said 

,  ...  at on  ...  .  day,  the  ....  day  of  .  .  .  . ,  a.  d. 

18.  .,  by  handing  to  and  leaving  with  said  ....  a  true 
copy  of  the  said  notice  of  contest  herein. 

.Subscribed   and   sworn   to   before  "j  

me  this  ....  day  of 1 8 .  . .  [ 


vs. 


§§841,  842  sheriffs'  and  constables'  forms. 
§  841.    Order   for   Attachment   of    Personal 

Property.     {California.) 

In    the    ....    Court   of    the  County   of State 

of 

S  _ 

To  .  .  .  .,  Sheriff  of  ....  County: 

You  are  hereby  instructed  to  attach,  by  virtue  of  the 
accompanying  writ,  in  the  above  entitled  suit,  the  fol- 
lowing described  property,  and  place  a  keeper  in  charge 
at  plaintiff's  expense,  viz.:    ....  (description). 

Dated, 18.  ..  

Attorney  for  Plaintiff. 

§  842.  Sheriff's  Notice  of  Garnishment.  [Cal- 
ifornia. ) 

Sheriff's   Office.  '| 

County  01  . .  .  I 
To  Mr.  \ : 

You  will  please  take  notice  that  all  moneys,  goods, 
credits,  effects,  debts  due  or  owing,  or  any  personal 
property  in  your  possession  or  under  your  control, 
belonorin<r  to  the  within  defendant.  .,  or  either  of 
them,  are  attached  by  virtue  of  a  writ  of  which  this  is 
a  copy,  and  you  are  notified  not  to  pay  over  or  transfer 
the  same  to  anyone  but  the  Sheriff  of  ...  .  County,  or 
someone  legally  authorized  to  receive  the  same,  but 
conduct  yourself  in  accordance  with  the  statutes  in  such 
case  made  and  provided.  I  also  require  of  you  a  state- 
ment  in  writing  of  th(-  amount  of  the  same. 

Dated iS.  .. 

Sheriff, 

By ,  I  )eputy  Sheriff. 


vs. 


sheriffs'  and  constables'  forms.  §§843,  844 
§  843.    Answer  to  Garnishment.    {California.) 

In  the  ....  Court  of  the  County  of  .  .  .  .,  State 
of  

)■ 

( 

To  the  notice  of  garnishment  and  demand  for  a 
statement  served  on  me  this  ....  da)^  of  .  .  .  .,  a.  d. 
18.  .,  by  the  Sheriff  of  ....  County,  under  and  by  vir- 
tue of  an  ....  issued  in  the  above  entitled  cause,  my 
answer  is,  that  I  am  ....  indebted  to said  de- 
fendant. .,  in  the  sum  of  ....  dollars,  and  that  I  have 
in  my  possession  and  under  my  control  ....  personal 
property  belonging  to  said  defendant,  to  wit:  .... 
(property). 

(Signed)   

Dated, ,  18... 

I  844.  Sheriff's  Inventory  and  Keeper's  Re- 
ceipt.    ( California. ) 


vs.  Sheriff's  Inventory. 


Bv  virtue  of  a  writ  of  ....  against  the  defendant  in 
the  above  entitled  cause,  for  $....,  with  interest  and 
costs,  duly  attested  the  ....  day  of  .  .  .  .,  a.  d.  18.  ., 
I   have  levied  upon  the  following  property   upon  the 

premises  of  .  .  .  .,  and  in  ....  possession,   to  wit: 

(description). 

Dated 18... 

,  Sheriff. 

By ,  Deputy  Sheriff. 


§  845  sheriffs'  and  consi ahi.fs'  forms. 

The  following-  is  the  keeper's  indorsement  on  above  fonn:^- 

Keeper's  Receii't. 

I  hereby  acknowledge  that  I  have  received  the  with- 
in described  property  so  levied  upon  by  the  Sheriff  of 
....  County,  from  said  sheriff  and  hereby  promise 
and  undertake  to  return  the  same,  and  every  part 
thereof,  to  the  said  sheriff  on  demand. 

Dated, ,  18... 

,  Sheriff's  Keeper. 

^845.  Notice  of  Attachment  of  Stocks.  {Cal- 
ifornia. ) 

Sherift's    Office,  ) 
County  of  ...  I 

To  The  Happy  Clam  Mining  Company,  and  David 
Digger,  Secretary  of  said  Company : 
You  will  please  take  notice  that  all  stocks  or  shares, 
or  interest  in  stocks  or  shares,  of  The  Happy  Clam 
Mining  Company,  in  your  possession  or  under  your 
control,  belonging  to  the  within  defendant,  are  attached 
by  virtue  of  a  writ,  of  which  this  is  a  copy,  and  you  are 
notified  not  to.  transfer  or  deliver  over  the  same  to 
anyon(t  but  the  Sheriff  of  ....  County.  1  also  require 
of  you  a  statement  in  writing  of  the  amount  of  the 
same. 

Dat(xl ,   iS.  .. 

Sheriff. 

r>\    i  )(|)iU\   Sheriff. 


vs. 


SUKRUKs'   AXl)   CONS'IAHLKS'    FORMS.     ^^846,847 

§  84b     Order  for  Attachment  of  Beal  Estate. 

Ill  the  ....  Court  of  the  County  of  ....,  State 
of 

\ 

\ 

To  .....  Sherift  ot   ....  County  : 

You  are  hereby  instructed  to  attach,  by  virtue  of  the 
accompanying  writ,  in  the  above  entitled  suit,  the  fol- 
lowing described  property,  standing  on  the  records  of 
....  County  in  the  name  of to  wit: (de- 
scription). 

Dated, ,  i8. 


Attorney  for  Plaintiff. 

§  847.    Notice  of  Attachment  of  Real  Prop- 
erty.    ( California. ) 

[to  attach    ro  coi'v  of  wrff.] 

State  of  .... ,       1 
-^  ss 

County  of |    " ' 

Notice  is  hereby  given  that,  under  and  by  virtue  of 
a  writ  of  attachment,  issued  out  of  the  ....  Court  of 

....  County,  State  of   of  which  the  annexed  is 

a   true  copy,    I    have  this  day  attached  all    the  right, 

title,  claim  and   interest  of defendant.  .,  or  either 

of  them,  of,  in  and  to  the  following  described  real  es- 
tate, standincr  on  the  records  of  ....  Countv  in  the 
name  of  .  .  .  .,  and  particularly  described  as  follows: 
....  (description  of  property). 

Dated, i8.  .. 

Sheriff. 

By Deputy  Sheriff. 


§§848,  849  sheriffs'  axd  constables'  forms. 
§  848.    Order  for  Release  of  Attachment. 

vs.        > 

To  .  ,  .  . ,  Sheriff  of  ...  .  County  : 

You  are  hereby  directed  and  ordered  to  release  all 
the  property  attached  by  you  in  the  above  entitled  ac- 
tion, and  return  the  writ  of  attachment  to  the  court 
from  which  it  was  issued. 

Dated ,  18.  ..  , 

Plaintiff's  Attorney. 

§  849.    Undertaking  to  Prevent  Attachment. 

( California. ) 

I  n  the  ....  Court  of  the  County  of  .... ,  State  of 

Whereas,  the  above  named  plaintiff  has  commenced 
an  action  in  the  aforesaid  court,  against  the  above 
named  defendant,  for  the  recovery  of  ....  dollars, 
.  .  .  . ;  and  whereas,  an  attachment  has  been  issued, 
directed  to  .  .  .  .,  Sheriff  of  the  County  of  .  .  .  .,  and 
placed  in  his  hands  for  execution,  whereby  he  is  com- 
manded to  attach  and  safely  keep  all  the  property  of 
the  said  defendant  within  his  county  not  exempt  from 
execution,  or  so  much  thereof  as  might  be  sufficient  to 
satisfy  the  plaintiff "s  demand  therein  stated,  in  conform- 
ity to  the  complaint,  in  the  sum  of  ....  dollars,  .  .  .  ., 
unless  the  defendant  give  him  security  Ijy  the  undert^ik- 
ing  of  two  sufficient  sureties,  in  an  amount  sufficient 
to  satisfy  said  demand,  beside  costs,  in  which  case  to 
take  such  undertaking  ; 

And  whereas,  the  .said  defendant  is  desirous  ol    fix- 
ing the  iindf-rtaking  mentioned  in  the  said  writ: 


vs. 


SUKRIFFS'  AM)  CONSTABLES'   FORMS.  ^  ^5^ 

Now,  therefore,  we,  the  undersigned,  residents  of 
the  .  .  .  .,  in  consideration  of  the  premises  and  to  pre- 
vent the  levy  of  said  attachment,  do  hereby  jointly  and 
severally  undertake,  in  the  sum  of  ....  dollars,  and 
promise  to  the  effect  that  if  the  plaintiff  shall  recover 
judgment  in  said  action,  we  will  pay  to  the  plaintift 
upon  demand  the  amount  of  said  judgment,  together 
with  the  costs,  not  exceeding  in  all  the  said  sum  of 
....  dollars. 

Dated  at  .  .  .  . ,  the  ....  day  of  .  .  .  .,   r8 .  .. 

[Seal.] 


}ss. 


[Seal.] 


State  of  ...  . 
County  of  .  . 

....  and  .  .  .  .,  whose  names  are  subscribed  as  sure- 
ties to  the  above  undertaking,  being  severally  duly 
sworn,  each  for  himself  deposes  and  says :  That  he  is 

a  resident  and  ....  holder  of  the  .  .  .  . ,  County  of 

and  is  worth  the  sum  in  the  said  undertaking  specified 
as  the  penalty  thereof,   over  and  above  all  his  debts 
and  liabilities,  exclusive  of  property  exempt  from  exe- 
cution. 
Subscribed  and  sworn  to  before  me,  |  

this  ....  day  of a.  d.   1 8 .  . .  )  


§  850.    Undertaking    on  Release  of  Attach- 
ment.   ( California. ) 

In  the  ....  Court  of  the  County  of State  of 


vs.       , 


Whereas,   the  above   named   plaintiff.,  commenced 


^  851  SIIKRIFFS'  AND   CON  S  I  AIJl.Ks'    KORMS. 

an  action  in  the  Superior  Court  of  the  ....   County  of 

of  the  State  of  .....   arainst  the  above  named 

defendant.  .,  claiming  that  there  was  due  to  said 
plaintiff.  .  from  said  defendant.  .  the  sum  of  ...  .  dollars, 
or  thereabouts,  and  thereupon  an  attachment  issued 
against  the  property  of  said  defendant .  .  as  security  for 
the  satisfaction  of  any  judgment  that  might  be  recov- 
ered therein,  and  certain  property  and  effects  of  the 
said  defendant .  .  have  been  attached  and  seized  by  the 
sheriff  of  said  county,  under  and  by  virtue  of  said  writ ; 

And  whereas,  the  said  defendant desirous  of 

having  said  property  released  from  attachment; 

Now,  therefore,  we,  the  undersigned,  residents  and 
....  holders  in  the  County  of  .  .  .  . ,  in  consideration  of 
the  premises,  and  also  in  consideration  of  the  release 
from  said  attachment  of  the  property  so  attached,  as 
above  mentioned,  do  hereby  jointly  and  severally  un- 
dertake, in  the  sum  of  ....  dollars,  and  promise  that 
in  case  the  plaintiff.  .  recover  judgment  in  the  action, 
defendant.  .  will,  on  demand,  pay  to  plaintifit.  .  the 
amount  of  whatever  judgment  may  be  recovered  in 
said  action,  together  with  the  percentage,  interest  and 
costs,  the  same  to  be  paid  in  United  States  gold  coin, 
if  so  required  by  the  terms  of  the  judgment. 

Dated  at the  ....  day  of 18.  .. 


(Insert    affidavit  ot  c|ualification    of  sureties  as    in    preceding 
Ijlank.) 

^  851      Indemnity  Bond  in  Attachment. 

Know   a  I, I.    Mi'.N  in    iiiksk    PrI'.sisNI's:  ■ 

Thai  wc of  th<'  County  of as  principal, 

and   of  the   said    county,    and    .....    of  the   said 


SIIKRirFs'  AND  CONSTABLES'  FORMS.  §  85  I 

county,  as  sureties,  are  held  and  firmly  bound  unto 
.  .  .  . ,  Sheriff  of  the  County  of  .  .  .  . ,  in  the  sum  of 
....  dollars,  ofold  coin  of  the  United  States  of  America, 
to  be  paid  to  the  said  sheriff,  or  his  certain  attorney, 
executors,  administrators  or  assigns,  for  which  payment 
well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs, 
executors  and  administrators,  jointly  and  severally, 
firmly  by  these  presents.      Sealed  with  our  seals. 

Dated,  the  ....  day  of  .  .  .  . ,  a.  d.  i  8 .  . . 

Whereas,  under  and  by  virtue  of  a  writ  of  attach- 
ment issued  out  of  the  Court  of  the  ....  County  of 
.  .  .  .,  of  the  State  of in  the  action  of  .  .  .  .,  plain- 
tiff, against  .  .  .  .,  defendant,  directed  and  delivered  to 
said  .  .  .  .,  Sheriff  of  the  County  of  .... ,  the  said  sheriff 
was  commanded  to  attach  and  safely  keep  all  the  prop- 
erty of  such  defendant  .  .  .  . ,  within  his  said  county, 
not  exempt  from  execution,  or  so  much  thereof  as  may- 
be sufficient  to  satisfy  the  plaintiff's  demand,  amount- 
ing to  ....  dollars,  as  therein  alleged,  and  the  said 
sheriff  did  thereupon  attach  the  following  described 
goods  and  chattels:    ....   (description  of  goods). 

And  whereas,  upon  the  taking  of  the  said  goods  and 

chattels  by  virtue  of  the  said   writ claimed  the 

said  goods  and  chattels  as  h .  .  property. 

And  whereas,  the  said  plaintiff  hereby  expressly 
waiving  a  trial  by  a  sheriff's  jury  of  the  right  of  property, 
....  require  of  said  sheriff  that  he  shall  retain  said 
property  under  such  attachment  and  in  his  custody. 

Now  therefore,  the  condition  of  this  obligation  is 
such  that  if  the  said  .  .  .  . ,  as  principal,  and  ....  and 
.  .  ,  .,  as  sureties,  their  heirs,  executors  and  administra- 
tors, shall  well  and  truly  indemnify  and  save  harmless 
him,  the  said  sheriff,  his  heirs,  executors,  administrators 
and  assigns,  of  and  from  all  and  any  damages,  expenses. 


^  851  sheriffs'  and  constables'  forms. 

costs  and  charges,  including  all  counsel  fees  for  which 
he,  the  said  sheriff,  his  heirs,  executors,  administrators 
or  assigns,  may  incur  in  consequence  of  the  legal  en- 
forcement of  the  payment  of  the  penalty  of  this  bond; 
and  against  all  loss  and  liability  which  he,  the  said 
sheriff,  his  heirs,  executors,  administrators  or  assigns, 
shall  sustain  or  in  any  wise  be  put  to,  for  or  by  reason 
of  the  attachment,  seizing,  levying,  taking  or  retention 
by  him,  the  said  sheriff,  in  his  custody,  under  said  at- 
tachment of  the  property  claimed  as  aforesaid. 

And  that  it  may  be  lawful  for  the  said  sheriff,  his 
heirs,  executors,  administrators  or  assigns,  to  bring  suit 
against  the  principal  and  sureties  hereto,  or  either  of 
them,  or  their  or  either  of  their  executors,  administra- 
tors or  assigns,  immediately  upon  the  rendition  of  any 
judgment  against  the  plaintiff  in  said  cause  or  against 
the  said  sheriff,  his  heirs,  executors,  administrators  or 
assigns.  And  that  said  sheriff  shall  not  be  required 
first  to  pay  the  said  judgment  in  order  to  entitle  him  or 
his  legal  representatives  to  maintain  such  suit  and  re- 
cover judgment  thereon — then  the  above  obligation  to 
he  void,  otherwise  to  remain  in  full  force  and  virtue. 

In  case  suit  or  suits  at  law  or  in  equity,  or  any  pro- 
ceeding to  be  brought  against  the  said  .  .  .  ,,  sheriff,  or 
against  him  individually,  or  against  him  in  any  capacity, 
jointly  with  other  person  or  persons,  or  alone,  for  or 
on  account  of  the  property  so  levied  upon,  or  for  the 
conversion  of  the  same,  the  said  ....  shall  and  may 
select  his  own  counsel  to  act  in  any  such  matter  with 
the  attorney  or  attorneys  of  the  principal  in  this  bond 
named,  and  the  n^asonable  fees  of  such  counsel  shall 
h(t  a  charge  against  said  principal  and  be  secured  by 
this  l)()iui.  So  likewise-  in  case  of  suit  or  any  event  re- 
(juirin'^  the  advice  of  counsel    in  and  about  the  custody 


sheriffs'  and  constables'  forms.  §  851 

or  detention  of  said  property,  the  said  ....  shall  be  at 
liberty  to  consult  counsel  of  his  own  choice,  and  the 
reasonable  fee  of  such  counsel  shall  be  secured  by  this 
bond.  In  addition,  and  as  cumulative  to  remedy  by 
suit  against  the  sureties  hereto,  it  is  and  shall  be  the 
right  and  privilege  of  the  said  .  .  .  .,  immediately  upon 
the  rendition   of  any  judsj^ment  against   the  plaintiff  in 

this  cause    or   against   the  said    to  apply    in    the 

court  wherein  such  judgment  was  rendered,  and  upon 
filing  this  bond,  to  have  judgment  thereon  rendered  in 
his  favor  against  the  principal  and  sureties  hereon  for 
the  full  amount  of  any  such  judgment,  including  all 
costs,  damages,  expenses  and  counsel  fees  as  the  said 
....  may  have  incurred  in  the  said  action,  as  well  as 
counsel  fees  for  advice,  and  expense  of  keeping  or 
storing  property  kept  hereinunder.  And  the  principal 
and  sureties  hereto  expressly  waive  any  notice  of  any 
such  application,  and  consent  to  the  entry  of  such  judg- 
ment, consenting  and  stipulating  also  that  the  estimate 
of  said  ....  as  to  the  amount  of  expenses,  counsel 
fees,  storage  and  the  like,  shall  be  final,  binding  and 
conclusive.  The  remedies  herein  provided  shall  not 
exclude  any  other  legal  relief,  but  are  cumulative  to  the 

other  rights,  legal  and  equitable,  of  said In  case 

of  any  recovery  against  said  ....  growing  out  of  the 
seizure  or  detention  of  the  property  herein  mentioned, 
then  in  any  proceeding  by  said  .  .  .  .,  upon  this  bond, 
any  defense  based  upon  illegality  of  the  consideration 
hereof,  or  the  unlawfulness  of  the  act  or  acts  of  said 
.  .  .  . ,  as  sheriff  or  otherwise,  is  hereby  expressly 
waived. 

Sealed  and  delivered  in  presence  o{\  

J  


§§852,853  sheriffs'  and  constables'  forms. 

§  852.    Order  for  Levy  and  Sale  of  Personal 
Property. 

In  the  ....  Court  of  the  County  of  .  .  .  .,  State  of  ...  . 


vs. 


To Sheriff  of   ....   County: 

You  are  hereby  instructed  to  levy  upon  and  sell,  by 
virtue  of  the  accompanying  writ,  in  the  above  entitled 
suit,  the  following  described  personal  property,  belong- 
ing to  the  defendant  herein:    ....   (description). 

Dated, t8.  .. 


Attornev  for  Plaintiff. 


§  853.    Indemnity  Bond   under   Execution — 
Personal  Property  Claimed  by  Third  Party. 

Know  all  Men  by  These  Presents: 

That  we,  ....    of  the  County  of  .  .  .  .,  as  principal, 

and    .  .  .  . ,   of  the  said  county,   and    of  the  said 

county,  .  .  .  .,  as  sureties,  are  held  and  firmly  bound 
unto  .  .  .  .,  Sheriff  of  the  County  of  .  .  .  .,  in  the  sum  of 
....  dollars,  \io\d  coin  of  the  United  States  of  Amer- 
ica,  to  be  paid  to  the  said  sheriff,  or  his  certain  attor- 
ney, executors,  administrators  or  assigns,  for  which 
jjayment  well  and  truly  to  be;  made  we  bind  ourselves, 
(jur  heirs,  executors  and  administrators,  jointly  and 
severally,  firmly  by  these  presents.  Sealed  with  our 
seals. 

Dated, the   ....  day  of a.  d.   18.  .. 

\/Vh<^T<'as,  un(l(T  .ind  bv  virtue,  of  a  writ  of  execution, 


sheriffs'  and  constables'  forms.  §  853 

issued    out  of   the    ....    Court    of   the    ....    County 

of   .  .  .  .,  of  the   State   of   .  .  .  .,  in   the  action  of 

plaintiff,  against  .  .  .  .,  defendant,  directed  and  deliv- 
ered to  said  .  .  .  . ,  Sherifl"  of  the  County  of  .  .  .  . ,  the 
said  sheriff  was  commanded  to  satisfy  the  judgment, 
with  interest,  out  of  the  personal  property  of  such  de- 
fendant within  his  county  not  exempt  from  execution, 
and  if  sufficient  personal  property  could  not  be  found, 
then  out  of  the  real  property  belonging  to  him  on  the 
day  when  the  said  judgment  was  docketed,  ....  or  at 
any  time  subsequently,  the  said  sheriff  did  thereupon 
levy  upon  and  take  into  his  possession  the  following 
described  goods  and  chattels,  to  wit:  ....  (description 
of  goods). 

And  whereas,  upon  the  taking  of  the  said  goods  and 
chattels  by  virtue  of  the  said  writ,  ....  claimed  the 
said  goods  and  chattels  as  h.  .  property; 

And  whereas,  the  said  plaintiff  hereby  expressly 
waiving  a  trial  by  a  sheriff's  jury  of  the  right  of  prop- 
erty, ....  require  of  said  sheriff  that  he  shall  retain 
said  property,  under  such  levy,  and  sell  the  same,  and 
apply  the  proceeds  thereof  to  the  satisfaction  of  said 
judgment,  interest  and  costs  of  suit; 

Now,  therefore,  the  condition  of  this  obligation  is 
such  that  if  the  said  .  .  .  .,  as  principal,  and  ....  and 
as  sureties,  their  heirs,  executors  and  administra- 
tors, shall  well  and  truly  indemnify  and  save  harmless 
him,  the  said  sheriff,  his  heirs,  executors,  administrators 
and  assigns,  of  and  from  all  and  any  damages,  expenses, 
costs  and  charges,  includino-  all  counsel  fees  for  which 
he,  the  said  sheriff,  his  heirs,  executors,  administrators 
or  assigns,  may  incur  in  consequence  of  the  legal  en- 
forcement of  the  payment  of  the  penalty  of  this  bond, 
and  against  all    loss  and    liability  which    he,   the  said 


34 


§  ^53  SHERIFF'S'  AND  CONSTABLES'  FORMS. 

sheriff,  his  heirs,  executors,  administrators  or  assigns, 
shall  sustain  or  in  anywise  be  put  to,  for  or  by  reason 
of  the  attachment,  seizing,  levying,  taking,  retention  in 
his  custody,  or  selling  by  him,  the  said  sheriff,  under 
said  writ,  of  the  property  claimed  as  aforesaid. 

And  that  it  may  be  lawful  for  the  said  sheriff,  his 
heirs,  executors,  administrators  or  assigns,  to  bring 
suit  against  the  principal  and  sureties  hereto,  or  either 
of  them,  or  their  or  either  of  their  executors,  adminis- 
trators or  assigns,  immediately  upon  the  rendition  of 
any  judgment  against  the  plaintiff  in  such  cause,  or 
against  the  said  sheriff,  his  heirs,  executors,  adminis- 
trators or  assio-ns.  And  that  said  sheriff  shall  not  be 
required  first  to  pay  the  said  judgment  in  order  to  en- 
title him  or  his  legal  representatives  to  maintain  such 
suit  and  recover  judgment  thereon — then  the  above 
obligation  to  be  void,  otherwise  to  remain  in  full  force 
and  virtue. 

In  case  suit  or  suits  at  law,  or  in  equity,  or  any  pro- 
ceeding to  be  brought  against  the  said  .  .  .  .,  sheriff,  or 
against  him  individually,  or  against  him  in  any  capac- 
ity, jointly  with  other  person  or  persons,  or  alone,  for 
or  on  account  of  the  property  so  levied  upon,  or  for  the 
conversion  of  the  same,  the  said  ....  shall  and  may 
select  his  own  counsel  to  act  in  any  such  matter  with 
the  attorney  or  attorneys  of  the  principal  in  this  bond 
named,  and  the  reasonable  fees  of  such  counsel  shall 
be  a  charge  against  said  principal  and  be  secured  by 
this  bond.  So,  likewise,  in  case  of  suit  or  any  event 
requiring  the  advice  of  counsel  in  and  about  the  cus- 
tody or  detention  of  said  property,  the  said  ....  shall 
be  at  liberty  to  consult  counsel  of  his  own  choice,  and 
the;  reasonable  fee  of  such  couns(;l  shall  be  secured  by 
this  bond.      In  acklition,  and  as  cumulative   to  remedy 


sheriffs'  and  constables'  forms.  §  853 

by  suit  against  the  sureties  hereto,  it  is  and  shall  be  the 
right  and  privilege  of  the  said  .....  immediately  upon 
the  rendition  of  any  judgment  against  the  plaintiff  in 
this  cause,  or  against  the  said  .  .  .  .,  to  apply  in  the 
court  wherein  said  judgment  was  rendered,  and,  upon 
filing  this  bond,  to  have  judgment  thereon  rendered  in 
his  favor,  against  the  principal  and  sureties  hereon,  for 
the  full  amount  of  any  such  judgment,  including  all 
costs,  damages,  expenses  and  counsel  fees  as  the  said 

....  may  have  incurred  in  the  said  action,  as  well  as 
counsel  fees  for  advice,  and  expense  of  keeping  or  stor- 
ing property  kept  hereinunder.  And  the  principal  and 
sureties  hereto  expressly  waive  any  notice  of  any  such 
application  and  consent  to  the  entry  of  such  judgment, 
consenting  and  stipulating  also  that  the  estimate  of 
said  ....  as  to  the  amount  of  expenses,  counsel  fees, 
storage  and  the  like,  shall  be  final,  binding  and  conclu- 
sive. The  remedies  herein  provided  shall  not  exclude 
any  other  legal  relief,  but  are  cumulative  to  the  other 

rights,  legal  and  equitable,  of  said    In  case  of 

any  recovery  against  said  .  .  ,  .,  growing  out  of  the 
seizure  or  detention  of  the  property  herein  mentioned, 
then,  in  any  proceeding  by  said  ....  upon  this  bond, 
any  defense  based  upon  illegality  of  the  consideration 
hereof,  or  the  unlawfulness  of    the  act  or  acts  of  said 

as    sheriff   or   otherwise,    is    hereby   expressly 

waived. 

Sealed  and  delivered  in  presence  of  


Note. — In  cases  where  the  right  of  the  claimant  to  the  prop- 
erty is  tried  before  a  sheriff's  jury,  the  bond,  instead  of  reciting 
that  the  plaintiff  waives  a  trial,  should  state  that  "a  jury  was 
summoned  by  the  said  sheriff  to  try  such  claim,  which  said  jury 


§§854*855  sheriffs'  and  constables'  forms. 

have,  by  their  finding,  decided,"  etc.;  and  if  the  verdict  is  in 
favor  of  the  claimant,  that  "the  said  plaintiff,  notwithstanding 
such  finding,  requires  that  said  sheriff  shall  retain  said  property," 
etc. 

§  854.    Notice  of  Sheriff's  Sale  of  Personal 

Property.     {California.) 

Under  and  by  virtue  of  an  execution  issued  out  of 
the  ....  Court  of  the  ....  County  of  .  .  .  .,  State 
of  .  .  .  .,  and  to  me  directed  and  dehvered  for  a  judg- 
ment rendered  in  said  court,  on  the  ....  day  of 

A.  D.  18.  .,  in  favor  of  .  .  ,  .,  and  against for  the 

sum  of  $ .... ,  in  .  .  .  . ,  together  with  costs  of  suit  and 
interest,  I  have  levied  on  all  the  right,  title,  claim  and 
interest  of  said  defendant,  of,  in  and  to  the  following 
property,  to  wit:    ....   (description). 

Notice  is  hereby  given  that  on  .  .  .  .,  the  ....  day 
of  .  .  .  .,  A.  D.  18.  .,  at  ....  o'clock  ....  M.,  of  said 
day,  I  will  sell  all  the  right,  title  and  interest  of  said 
.  .  . . ,  or  either  of  them,  in  and  to  the  above  described 
property,  or  so  much  thereof  as  may  be  necessary  to 
satisfy  plaintiff's  claim,  besides  all  costs,  interest  and 
accruing  costs. 

The  sale  will  take  place  at  .  .  .  .,  at  public  auction, 
for  cash  in  hand,  to  the  highest  and  best  bidder. 

Dated, 18.  .. 

Sheriff. 

By ,  Deputy  Sheriff. 

§  855.  Certificate  of  Sale  of  Personal  Prop- 
erty. 

1, ,  Sheriff  ul  the  County  of ,  State  of 

do  hereby  certify  that,  under  and  by  virtue  of  an 

execution   issued    out  of   the    ....    Court  of   the  said 


SriERTFFS'  AM)  CONSTABLES*  FORMS.  ^  855a 

County  of  ...  .  in  a  certain  action  lately  pending  in 
said  court,  at  the  suit  of  .  .  .  .,  plaintiff,  against  .  .  .  ., 
defendant,  attested  the  ....  day  of  .  .  .  . ,  1 8 .  . ,  by 
which  I  was  commanded  to  make  the  sum  of  ...  .  dol- 
lars, with  interest  and  costs,  to  satisfy  the  judgment  in 
said  action  out  of  the  personal  property  of  said  defend- 
ant if  .sufficient  personal  property  could  be  found,  all 
as  more  fully  appears  by  the  said  writ,  reference  there- 
unto being  hereby  made;  I  have  levied  on,  and  on  the 
....  day  of  .  .  .  .,  i8.  .,  at  .  .  o'clock,  a.  m.,  at  the  Court 

House  door  in  the  City  of in  said    County  of 

.  .  .  .,  duly  sold  at  public  auction,  according  to  law,  and 
after  due  and  legal  notice,  to who  made  the  high- 
est bid  therefor  at  such  sale,  for  the  sum  of  $.  .  .  .  in 
....  coin,  which  was  the  whole  price  paid  therefor,  all 
the  right,  title  and  interest  of  the  said  judgment  debtor, 
.  .  .  .,  in  and  to  the  following  described  personal  prop- 
erty, to  wit:  ....  (description  of  property). 

Dated,  this  ....  day  of t8.  .. 

Sheriff. 

By Deputy  Sheriff. 


§  855a     Certificate  of  Sale  of  Corporate  Stock. 

1, ,  Sheriff  of  the  County  of ,  State  of 

.  .  .  .,  do  hereby  certify  that,  under  and  by  virtue  of  the 
final  judgment  and  decree  of  the  ....  Court  of  the 
County  of  .... ,  State  of  .  .  .  . ,  in  a  certain  action  lately 
pending  in  said  court,  at  the  suit  of  .  .  .  .,  plaintiff,  and 

against    defendant,  duly  certified    to   me    under 

the  seal  of  said  Superior  Court  on  the  ....  day  of 
.  .  .  .,  18.  .,  and  to  me,  as  such  sheriff,  duly  directed 
and  delivered,   whereby  I  was  commanded  to  sell  the 


§  856  sheriffs'  and  constables'  forms. 

hereunto  annexed  certificate  of  stock  according  to  law,, 
and  apply  the  proceeds  of  such  sale  towards  the  satis- 
faction of  the  judgment  in  said  action,  amounting  to 
the  sum  of  $ in  United  States  gold  coin,  with  in- 
terest and  costs  of  suit;  on  the  ....  day  of  .  .  .  .,  18. ., 
at  ...  .  o'clock,  .  .  M.,  at  the  Court  House  door,  in  the 
said  County  of 1  duly  sold  at  public  auction,  ac- 
cording to  law.  and  after  due  and  legal  notice,  to  .  ,  .  . , 
who  made  the  highest  bid  therefor,  at  such  sale,  for  the 
sum  of  $....,  in  United  States  gold  coin,  which  was 
the  whole  price  paid  for,  the  hereunto  annexed  certifi- 
cate of  stock  in  said  order  of  sale  described. 

Given  under  my  hand,  this  ....  day  of 18.  .. 

,  Sheriff 

By .,  Deputy  Sheriff 

§  856.   Order  for  Levy  and  Sale  of  Real  Estate. 

I  n  the  ....    Court  of  the  County  of State  of 


vs. 


\ 
S 

To Sheriff  of  ...  .  County : 

You  are  hereby  instructed  to  levy  upon  and  sell,  by 
virtue  of  the  accompanying  writ,  in  the  above  entitled 
suit,  the  following  described  property,  standing  on  the 
records  of  ...  .  County  in  the  name  of (descrip- 
tion). 

Attorney  for  IMaintiff 
Dated 18.  .. 


sheriffs'  and  constables'  forms.  §§  857,  858 
§  857.    Notice  of  Levy  on  Real  Estate  under 

Execution.     {California.) 

[to  attach  to  copy  of  writ.] 

Sheriff's   Office,  \ 
County  of | 

Notice  is  hereby  given   that,  under  and  by  virtue  of 
a  writ  of  execution,  issued  out  of  the  ....  Court  of  the 

County  of  .  .  .  . ,  State  of of  which  the  annexed 

writ  is  a  true  copy,  I  have  this  day  attached  and  levied 
upon  all  the  right,  title,  claim  and  interest  of  .  .  .  .,  de- 
fendant .  . ,  or  either  of  them,  of,  in  and  to  the  following 

described  real  estate,  standing  on  the  records  of  

County  in  the  name  of  .  .  .  . ,  and  particularly  described 
as  follows:    ....  (description  of  property). 

,  Sheriff. 

By ,  Deputy  Sheriff. 

Dated 18.  .. 

§  858.    Notice  of  Sale  of  Real  Estate  under 

Execution.      {California.) 


vs.       >  No.  .  .  .      Sheriff's  Sale. 


By  virtue  of   an   execution  issued  out  of  the    .... 

Court  of  the    ....    County  of    .  .  .  . ,  State  of    

wherein    .  .  .  .,  plaintiff,  and    defendant,  upon  a 

judgment  rendered  the  ....  day  of  .  .  .  .,  a.  d.  18.  ., 
for  the  sum  of  ...  .  dollars,  United  States  gold  coin, 
besides  costs  and  interest,  I  have  this  day  levied  upon 
all  the  right,  title,  claim  and  interest  of  said  defendant, 
.  . .  . ,  of,  in  and  to  the  following  described  real  estate^ 
to  wit:  ....  (description). 


§  859  SriKRIFFS'  AND  CONS'lABI.Ks'    FORMS. 

Public  notice  is  hereby  given  that  I  will,  on the 

....  day  of  .  .  .  . ,  A.  I).  18..,  at  ...  o'clock  .  .  m.  of 
said  day,  in  front  of  the  Court  House  door  of  the  County 
of  .  .  .  .,  sell  at  public  auction,  for  United  States  gold 
coin,  all  the  right,  title,  claim  and  interest  of  said  de- 
fendant, .  .  .  . ,  of,  in  and  to  the  above  described  prop- 
erty, or  so  much  thereof  as  may  be  necessary  to  raise 
sufficient  money  to  satisfy  said  judgment,  with  interest 
and  costs,  etc.,  to  the  highest  and  best  bidder. 

Dated ,  18... 

Sheriff. 

By Deputy  Sheriff. 

§  859.     Notice  of  Foreclosure  Sale  by  Sheriff. 

vs.       >  No.   ...      Sheriff's  Sale. 


Under  and  by  virtue  of  an  order  of  sale  and  decree 
of  foreclosure  and  sale,  issued  out  of  the  ....   Court 

of  the  ....    County  of of  the  State  of  .....  on 

the  .  .  .  day  of  .  .  .  . ,  a.  d.  i8 .  .,  in  the  above  entitled 
action,  wherein  .  .  .  .,  the  above  named  plaintiff,  ob- 
tained a  judgment  and  decree  of  foreclosure  and  sale 

against defendant,  on   the  .  .  .  day  of  .  .  .  . ,  a.  d. 

18.  .,  for  the  sum  of  ...  .  dollars,  in  United  States  gold 
coin,  besides  interest,  costs  and  counsel  fees  .  .  .  .,  vvhich 

said  decree   was,  on   the   .  .  .  day  of   a.    n.    18.  ., 

recorded  in  judgment  book  ...  of  said  court,  at  page 
.  .  .,  I  am  commanded  to  sell  th .  .  certain  lot,  piece  or 
parcel  of  land,  situate,  lying  and  l)eing  in   ....  County 

of Stati'  oi" and   boniulcd  and  described  as 

follows:    ....  (description). 

Pul^lic  notice  Is  hercbs   <>ivcn  lh;it,  on th<'   .  .  . 


SUKRU'KS'   AND  CONSIA  15!  .Ks'    FORMS.  §  86o 

day  of  .....  A.  1).  i8.  .,  at  ...  o'clock  .  .  m.  of  that  day, 
in  front  of  the  Court  House  door  of  the  County  of  .  .  .  ., 
I  will,  in  obedience  to  said  order  of  sale  and  decree  of 
foreclosure  and  sale,  sell  the  above  described  property, 
or  so  much  thereof  as  may  be  necessary  to  satisfy  said 
judgment,  with  interest  and  costs,  etc.,  to  the  highest 
and  best  bidder,  for  gold  coin  of  the  United  States. 

Dated r8.  .. 

,  Sheriff. 

By Deputy  Sheriff 


§  860.    Notice  of  Sale  by  Commissioner.    {Cal- 
ifornia. ) 


vs.       >  No Commissioner's  Sale. 


Under  and  by  virtue  of  a  judgment  and  decree  of 
foreclosure  and  an  order  of  sale  issued  out  of  the  .... 
Court  of  the  County  of  .  .  .  .,  State  of  California,  on 
the  ....  day  of  .  .  .  .,  a.  d.  i8 .  ..  in  the  above  entitled 
action,  wherein  .  .  .  . ,  the  above  named  plaintiff,  obtained 
a  judgment  and  decree  of  foreclosure  and  sale  against 
....  defendant,  on  the  ....  day  of  .....  a.  d.  i  8 .  . ,  for 
the  sum  of  ....  dollars  in  g^old  coin  of  the  United 
States,  besides  interest,  costs  and  counsel  fees,  which 
said  decree  was,  on  the  ....  day  of  .  .  .  .,  a.  d.  i8.  ., 
recorded  in  judgment  book  ....  of  said  court,  at  page 

I   am  commanded  to  sell:    ....    (description  of 

property. ) 

Public  notice  is  hereby  given  that  on the  .... 

day  of  .  .  .  .,  A.  D.  i8.  .,  at  ....  o'clock  .  .  m.  of  that 
day,  in  front  of  the  Court  House  door  of  the  County 
of   .  .  .  .,  I  will,, in  obedience  to  said  judgment,  decreq 


§  86 1  sheriffs'  and  constables'  forms. 

and  order  of  sale,  sell  the  above  described  property,  or 
so  much  thereof  as  may  be  necessary  to  raise  sufficient 
money  to  satisfy  said  judgment  and  decree,  with  inter- 
est and  costs,  etc.,  to  the  highest  and  best  bidder,  for 
gold  coin  of  the  United  States. 

Dated, ,  i8.  .. 

,  a  Commissioner 

appointed  by  said  ....  Court. 

§  86 1.    Certificate  of  Execution  Sale  of  Real 

Estate.     ( California. ) 

In    the    ....    Court  of   the    ....    County  of  .  .  .  ., 
State  of 


vs. 


I, Sheriff  of  the  County  of  .  .  .  .,  do  hereby 

certify  that  by  virtue  of  an  execution  in  the  above  en- 
titled case,  attested  the  ....  day  of  .  .  .  .,  i8.  .,  by 
which  I  was  commanded  to  make  the  amount  of  .... 
dollars,  ....  to  satisfy  the  judgment  in  said  action, 
with  costs  and  interest  thereon,  out  of  the  personal 
property  of  .  .  .  . ,  the  above  defendant .  . ,  and  if  suffi- 
cient personal  property  could  not  be  found,  then  out  of 
the  real  property  belonging  to  the  said  .....  on  the 
....  day  of  .  .  .  .,  A.  i>.  i8.  .,  or  at  any  time  thereafter, 
as  by  the  said  writ,  reference  being  thereunto  had,  more 
fully  appears;  I  have  levied  on  and  this  day  .sold  at 
[)ublic  auction,  according  to  the  .statute  in  such  cases 
made  and  provided,  to who  was  the  highest  bid- 
der,  for    the    sum    of    ....    dollars,    which  was 

the  whole  price  paid  by  him  for  the  right,  title  and 
interest  of  said  defendant.  .,  of,  in  and  to  the  real  es- 
t;it«t  (l(;scribed  as  follows,  to  wit:    ....   (description). 


sheriffs'  AfJD  constables'  FORMS.  §  86? 

That  the  price  of  each  distinct  lot  and  parcel  was  as 
follows:  .  .  .  .,  Lot  B,  in  Block  2,  was  sold  to  ....  for 
$50,  lawful  money  of  the  United  States.  Lot  C,  in 
Block  4,  was  sold  to  ....  for  $70,  lawful  money  of  the 
United  States. 

And  that  the  said  real  estate  is  subject  to  redemp- 
tion, in  .....  pursuant  to  the  statute  in  such  cases  made 
and  provided. 

Dated  at this  ....  day  of  .  .  .  . ,  a.  1  >.   18... 

,  Sheriff, 

By ,  Deputy  Sheriff. 

§  862.    Certificate  of  Sale  under  Foreclosure. 

I, ,  Sheriff  of  the  County  of ,  State  of 

.  . .  .,  do  hereby  certify  that,  under  and  by  virtue  ol 
the  final  judgment  and  decree  of  the  ....  Court  of 
the  ....  County  of  .  .  .  .,  of  the  State  of  .  .  . .,  in  a 
certain  action  lately  pending  in  said  ....  Court, 
at  the  suit  of  .  .  .  .,  plaintiff.  .,  and  against  ....,  de- 
fendant, duly  certified  to  me  under  the  seal  of  said 
....  Court,  the  ....  day  of  ....,  a.  d.  18..,  and 
an  order  of  sale  thereon,  issued  to  me  as  such  sheriff, 
duly  directed  and  delivered,  whereby  I  was  commanded 
to  sell  the  property  hereinafter  described,  according  to 
law,  and  apply  the  proceeds  of  such  sale  towards  the  sat- 
isfaction of  the  judgment  in  said  action,  amounting  to 
the  sum  of  ....  dollars,  in  United  States  gold  coin, 
with  interest,  counsel  fees,  taxes  and  costs  of  suit, 
amounting  in  all  to  the  sum  of  ...  .  dollars  on  the  .... 
day  of  .  .  .  .,  a.  D.  18.  .,  at  .  .  .  .  o'clock,  .  .  m.,  at  the 
Court  House  door,  in  the  City  of  .  .  .  . ,  in  the  said  county 
of  .... ,  I  duly  sold  at  public  auction,  according  to  law, 
and  after  due  and  lecral  notice,  to  .  .  .  . ,  who  made  the 


§  863  SHKKIFFS'  AND  CONS  lAIM.Ks'   FORMS. 

highest  bid  therefor  at  such   sale,  for  the  sum  of   .  '.  .  . 
dollars,  in   United   States   gold   coin,  .  .  .  .,  which'  was 
the  whole  price  paid,  the  real  estate  in  said   order  of 
sale  described,  as  follows,  to  wit:    ....  (description  of 
property  sold). 

And  I  do  hereby  further  certify  that  the  said  prop- 
erty was  sold  in  ....  lots  ....  or  parcels,  as  follows: 
Lot  I  in  Block  5  was  sold  to  ....  for  $1,000,  United 
States  gold  coin.  Lot  2  in  Block  5  was  sold  to  .... 
for  $800,  United  States  gold  coin.  That  the  said  sum 
of  ....  dollars,  in  United  States  gold  coin,  was  the 
highest  bid  made,  and  the  whole  price  paid  therefor. 

And  that  the  same  is  subject  to  redemption,  in  United 
States  gold  coin,  pursuant  to  the  statute  in  such  cases 
made  and  provided. 

Dated  at   this.  .  .  .    day  of   .  .  .  .,  a.  r>.  18 .  .. 

Sheriff, 

By   Deputy  Sheriff. 

§  863  Certificate  of  Redemption  of  Real  Es- 
tate. 

State  of I 

County  of j      ■ 

i .Sheriff  of  the  County  of State  of 

.  .  .  . ,  do  hereby  certify  that  on  the  ....  day  of  ,  .  .  . , 
18.  ..  Mary  J  ucksch,  judgment  debtor  under  the  judg- 
ment in  the  action  hereinafter  mentioned,  in  due  form 
of  law,  tendered  and  paid  to  me  the  sum  of  $188,  be- 
ing in  full  payment  of  the  purcha.se  price  paid  by  the 
purchas(*r  at  the  sale  of  the  real  property  hennnafter 
described,  made  by  me  on  the  .  .  .  .  "clay  of  .  .  .  .,  18.  ., 
undtT  th('  decree  o(  foreclosure  and  sale,  issued  to  me 
oul    of  thf  Superior  Court  of  the  City  and   County  of 


sheriffs'  and  constables"  forms.  §  864 

San  Francisco,  State  of  California  (No.  22764),  in  the 
action  of  La  Societe  Francaise  d'Epargnes  et  de  Pre- 
voyance  Mutuelle  vs.  The  Berkeley  Land  and  Town 
Improvement  Association,  Mary  Jucksch,  el  ah.,  in- 
cluding- two  per  cent  per  month  interest  thereon,  up  to 
the  time  of  redemption,  together  with  the  amount  of 
all  taxes  and  assessments  paid  by  the  purchaser  on 
said  property,  after  said  purchase,  and  interest  thereon. 
That,  thereupon,  I  received  said  sum  of  money  so  ten- 
dered and  paid  as  aforesaid,  and  have  granted  and  exe- 
cuted to  said  Mary  Jucksch  this,  my  certificate  of  re- 
demption of  said  property,  in  conformity  with  the  stat- 
ute in  such  case  made  and  provided.  The  premises  so 
redeemed,  or  intended  to  be  redeemed,  are  described  as 
follows,  to  wit:    ....  (description). 

In  witness  whereof,    I   have  hereunto  set  my  hand 

this     .  .  .  day  of    18.  .. 

,  Sheriff 

By ,  Deputy  Sheriff 

§  864     Receipts  to  Sheriff. 

$ Oakland ,  18.  .. 

Received  from  Charles  McCleverty,  Sheriff  of  Ala- 
meda County ,  in  United  States  gold  coin,  being 

the  amount  of  sale  of  real  estate  in  the  case  of  .  .  .  ., 
Superior  Court,  County  of  .  .  .  .,  after  deducting  sher- 
iff's costs  and  disbursements,  amounting  to  $ 

Plaintiff's  Attorney. 

$ Oakland, ,  18.  .. 

Received  from  Charles  McCleverty,  Sheriff  of  Ala- 
meda County,    ....100  dollars,   in   United    States  gold 


^  865  sheriffs'  and  constables'  forms. 

coin,  being  the  amount  of  judgment,   interest,  costs, 

etc.,  due  plaintiff,   .  .  .  .,  in  the  case  of   ....    vs , 

Superior  Court,  ....  County  of 


Plaintiff's  Attorney. 

§  865.  Deed  under  Execution  Sale.  {Califor- 
nia.) 

This  Indenture,  made  this  ....  day  of  .  .  .  .,  a.  d. 
18.  .,  between  .  .  .  .,  Sheriff  of  the  County  of  .  .  .  .,  of 
the  first  part,  and  .  .  .  . ,  of  the  ....  County  of  .  .  .  . , 
and  State  of  .  .  .  .,  of  the  second  part: — 

Whereas,  by  virtue  of  a  writ  of  execution  issued  out  of. 
and  under  the  seal  of,  the  ....  Court  of  the  County  of 

.  .  .  . ,  State  of attested  the  ....  day  of  .  .  .  . ,  a.  d. 

j8.  .,  upon  a  judgment  recovered  in  said  court  on  the 
....  day  of  .....  A.  D.  18.  .,  in  favor  of  .  .  .  .,  and 
against  .  .  .  . ,  to  the  said  sheriff  directed  and  delivered, 
commanding  him  that  of  the  personal  property  of  the 
said  judgment  debtor  in  his  county,  he  should  cause  to 
be  made  certain  moneys  in  the  said  writ  specified,  and 
if  sufficient  personal  property  of  the  said  judgment 
debtor  could  not  he  found,  that  then  he  should  cause  the 
amount  of  said  judgment  to  be  made  out  of  the  lands, 
tenements  and  real  property  belonging  to  him  on  the 
....  day  of A.  D.  r8 .  . ,  or  at  any  time  afterwards; 

And,  whereas,  because  sufficient  personal  property 
of  the  said  judgment  debtor  could  not  be  found,  whereof 
he,  the  said  sheriff,  could  cause  to  hd  made  the  moneys 
specified  in  said  writ,  he,  the  said  sheriff,  did,  in  obedi- 
ence to  said  command,  levy  on,  take  and  seize  all  the 
estate,  right,  title  and  int(M-('st  which  the  said  judgment 
debtor  so  had   of.  in  .wm]   to  the   lands,  tenements,  real 


sheriffs'  and  constables'  forms.  §  865 

estate  and  premises  hereinafter  particularly  set  forth 
and  described,  with  the  appurtenances,  and  did,  on  the 
,  .  .  .  day  of  .  .  .  . ,  A.  1).  18 .  .,  sell  the  said  premises,  at 
public  auction,  at  the  Court  House  door,  in  the  City  of 
.....  County  of  .  .  .  .,  between  the  hours  of  nine  in 
the  morning  and  five  in  the  afternoon  of  that  day, 
namely:  at  ....  o'clock  .  .  m.,  after  first  having  given 
notice  of  the  time  and  place  of  such  sale,  by  advertis- 
ing the  same  accordinjj  to  law  ;  at  which  sale  the  said 

premises  were  struck  off  and  sold  to for  the  sum 

of  .....  United  States  gold  coin,  he,  the  said  ..... 
being  the  highest  bidder,  and  that  being  the  highest 
sum  bid,  and  the  whole  price  paid  for  the  same; 

And,  whereas,  the  said  sheriff,  after  receiving  from 
said  purchaser  the  said  sum  of  money  so  bid  as 
aforesaid,  gave  to  him  such  certificate  as  is  by  law  di- 
rected to  be  given,  and  filed  in  the  office  of  the  recorder 
of  the  County  of  ...  .  a  duplicate  of  such  certificate; 

And,  whereas,  six  months  after  such  sale  have  ex- 
pired without  any  redemption  of  the  said  premises  hav- 
ing been  made; 

Now  this  indenture  witnesseth,  that  I,  .....  the 
sheriff  aforesaid,  and  party  hereto  of  the  first  part,  by 
virtue  of  said  writ,  and  in  pursuance  of  the  statute  in 
such  case  made  and  provided,  for  and  in  consideration 
of  the  sum  of  money  above  mentioned,  to  him  in  hand 
paid,  as  aforesaid,  by  the  said  party  of  the  second  part, 
the  receipt  whereof  is  hereby  acknowledged,  hath 
granted,  bargained,  sold,  conveyed  and  confirmed,  and 
by  these  presents  doth  grant,  bargain,  sell,  convey  and 
confirm  unto  the  said  .  .  .  .,  his  ....  heirs  and  assigns, 
all  the  estate,  right,  title  and  interest  of  the  said  .  . .  ., 
which  ....  had  on  the  said  ....  day  of  .  . .  . ,  a,  d.  18 .  . , 
or  at  any  time  afterwards,  or  now  ....  of,  in  and  to  all 


§  866  sheriffs'  and  constables'  forms. 

the  following  described  premises,  viz.:  ....  (descrip- 
tion), together  with  all  and  singular  the  hereditaments 
and  appurtenances  thereunto  belonging,  or  in  anywise 
appertaining,  to  have  and  to  hold  the  said  above  men- 
tioned and  described  premises,  with  the  appurtenances, 
unto  the  said  .....  heirs  and  assigns  forever,  as  fully 
and  absolutely  as  he,  the  sheriff  aforesaid,  can,  may  or 
ought  to,  by  virtue  of  the  said  writ,  and  of  the  statute 
in  such  case  made  and  provided,  grant,  bargain,  sell, 
release,  assign,  convey  and  confirm  the  same. 

In  witness  whereof,  the  said  sheriff",  the  party  of  the 
first  part  to  these  presents,  hath  hereunto  set  his  hand 
and  seal  the  day  and  year  first  above  written. 
Sealed  and  delivered  in  the  \ 

presence  of  >  , 

)  Sheriff  of  the  County  of 

.  .  .  . ,  State  of 

§  866.     Sheriff's  Deed  under  Foreclosure  Sale- 

( California. ) 

This  Indenture,  made  the  ....  day  of  .  .  .  .,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and 

between  .  .  .  .,  Sheriff  of  the  County  of  .  .  .  .,  State  of 
.  .  .  .,  the  party  of  the  first  part,  and  .  .  .  .,  the  part.  . 
of  the  second  part,  witnesseth: 

Whereas,   in  and   by  a  certain  judgment  or  decree, 
made  and    entered    by  the    ....    Court  of  the   .... 

County  of    .State   of    .  .  .  .,    on    the    ....    day 

of A.  I).  1 8.  .,  in  a  certain  action  then  pending  in 

said  court,  wherein  ....  was  plaintiff,  and  ....  was 
defendant,  and  of  which  said  judgment  or  decree  a  cer- 
tified copy,  with  an  order  of  sale  from  .said  court,  was 
delivered  to  said  j)arty  of  the  first  part,  as  such  sheriff, 
for  exec  iition,  it  was  among  other  things  ordered,  ad- 


>HKKI11  s'   AM»  C<».\SIAi;i,Ks'    loRM.s.  ^   X66 

judgttl  and  decreed,  that  all  and  singLilar  the  mort<;^aj^ed 
premises  described  in  the  complaint  in  said  action,  and 
specifically  described  in  said  judj^ment  or  decree,  should 
be  sold    at   jniblic  auction    by   the   sheriff   of   the   said 

County  of in   the   manner  required   bv  law,   and 

according-  to  the  course  and  practice  of  said  court ;  that 
such  sale  be  made  ,  .  .  .,  in  the  said  County  of be- 
tween the  hours  of  nine  o'clock  in  the  forenoon  and 
five  o'clock  in  the  afternoon  on  such  day  as  the  said 
sheriff  should  appoint,  that  any  of  the  parties  to  said 
action  might  become  the  purchaser  at  such  sale  ;  and 
that  said  sheriff  should  execute  the  usual  certificates 
and  deeds  to  the  purchaser  or  purchasers,  as  required 
by  law; 

And,  whereas,  the  said  sheriff  did  at  the  hour  of  ...  . 

o'clock  .  .  M.,  on  the  ....  day  of \.  d.   i8.  .,  after 

due  public  notice  had  been  given,  as  recjuired  bv  the 
laws  of  this  State,  and  the  course  and  practice  of  said 
court,  duly  sell  at  public  auction  in  the  said   Countv  of 

agreeably  to  said   judgment  or  decree,  and  the 

provisions  of  law,  the  premises  in  the  said  decree  or 
judgment  mentioned,  at  which  sale  the  premises  in 
said    judgment  or    decree,   and    hereinafter    described, 

were  fairly  struck  off  to  the  said    the  said   part .  . 

hereto    of   the    second     part,    for    the    sum    of     .... 

dollars being  the   highest  bidder   ,  .  .  .,  and   that 

being  the  highest  sum  bid  for  the  same; 

And,  whereas,  the  said  ....  thereupon  paid  to  the 
said  sheriff  the  sum  of  money  so  bid  by  .  .  .  . : 

And,  whereas,  the  said  sheriff  thereupon  made  and 
issued  the  usual  certificate  in  duplicate  of  the  said  sale 
in  due  form  of  law,  and  delivered  one  thereof  to  the 

said  purchaser ,  and  caused  the  other  to  be  filed 

in  the  o^ct  of  the  Countv  Recorder  of  said  Countv  of 


vj  866  sheriffs'  and  constables'  forms. 

And,  whereas,  more  than  six  months  have  elapsed 
since  the  date  of  said  sale,  and  no  redemption  has  been 
made  of  the  premises  so  sold  as  aforesaid,  by  or 
on  behalf  of  the  said  judgment  debtor,  the  said  .  .  .  ., 
or  by  or  on  behalf  of  any  other  person,  ....  (recital 
of  any  assignment  that  may  have  been  made). 

Now  this  indenture  witnesseth:  That  the  said  party 
of  the  first  part,  the  said  sheriff,  in  order  to  carry  into 
effect  the  sale  so  made  by  him  as  aforesaid,  in  pursu- 
ance of  said  judgment  or  decree,  and  in  conformity  to 
the  statute  in  such  case  made  and  provided,  and  also 
in  consideration  of  the  premises  and  of  the  said  sum  of 
,  .  .  .  dollars,  ....  so  bid  and  paid  to  him  by  the  said 
purchaser,  .  .  .  . ,  the  said  .  .  .  . ,  the  receipt  whereof  is 
hereby  acknowledged,  has  ^ranted,  baro^ained,  sold  and 
conveyed,  and  by  these  presents  does  grant,  bargain, 
sell  and  convey  unto  the  said  part .  .  of  the  second 
part,  and  to  ....  heirs  and  assigns  forever,  all  th .  . 
certaiii  lot.  .,  piece.  .  or  parcel.  .  of  land  situate,  lying, 
and  being  in  the  said  County  of  .....  State  of  .  .  .  ., 
and  bounded  and  particularly  described  as  follows,  to  wit: 
....  (description).  Together  with  all  and  singular  the 
tenements,  hereditaments  and  appurtenances  thereunto 
belonging,  or  in  anywise  appertaining,  and  the  rever- 
sion and  reversions,  remainder  and  remainders,  rents, 
issues  and  profits  thereof;  and  also  all  the  estate,  right, 
title  and  interest,  property,  possession,  claim  and  de- 
mand whatsoever,   as  well   in   law  as  in  equity,  ot   the 

said  party  of  the  first  part,  and  of  said  defendant , 

of,   in  and  to  the  said   premises,  and  every  part  and 
parcel  thereof. 

'lo  ha\'c  and  to  hold,  all  and  singular,  the  said  prem- 
ise's hereljy  convened,  or  intended  so  to  be,  together 
with   the  appurtenances,    inittj  the  said   part.  .    of   the 


sheriffs'  and  constables'  forms.  §  867 

second    part heirs    and    assigns,   to    ....    own 

proper  use,  benefit  and  behoof  forever. 

In  witness  whereof,  the  said  party  of  the  first  part  to 
these  presents,  has  hereunto  set  his  hand  and  seal  the 
day  and  year  first  above  written. 
Signed,  sealed    and    deliv-  ^ 

ered  in  the  presence  of      ^  , 

)  Sheriff  of  the  County  of 

.  .  .  .,  State  of 

§   867.     Bond    of    Receiver   in    Insolvency. 

( California. ) 

In  the  ....  Court  of  the  County  of  .  .  .  .,  State  of 


In  the  Matter  of  the  Estate  of 

• » 

An  Insolvent  Debtor. 


Know  all  Men  by  these  Presents: 

That  we,  .  ,  .  .,  as  principal,  and  ....  and  ....  as 
sureties,  all  of  the  County  of  ...  .  and  State  of  .... ,  are 
held  and  firmly  bound  unto  the  State  of  .  .  .  . ,  in  the  fol- 
lowing penal  sums,  to  wit :  The  said  .  .  .  .,  as  principal, 
in  the  sum  of  ...  .  dollars,  ....  as  surety,  in  the  sum  of 
....  dollars,  and  ....  as  surety,  in  the  sum  of  ...  .  dol- 
lars, lawful  money  of  the  United  States  of  America,  for 
the  payment  of  which,  well  and  truly  to  be  made,  we  bind 
ourselves,  our  and  each  of  our  heirs,  executors,  admin- 
istrators and  assigns,  jointly  and  severally,  firmly  by 
these  presents. 

Dated  this  ....  dav  of \.  d.  18 .  .. 


^  86S  SHKKIFKS'  AM)  CONSTABLES'   FORMS. 

The  condition  of  thv.  above  obligation   is  such   that, 

whereas  said  ....  was,  on  the  ....  day  ot    a.  d. 

1 8..,  by  an  order  of  the  said  .Superior  Court,  dulv 
made  and  entered  herein,  appointed  receiver  in  the 
matter  of  the  estate  of insolvent  debtor: 

Now,  therefore,  if  the  said  ....  shall  well  and  truly 
perform,  according  to  law,  the  duties  of  a  receiver  as 
aforesaid,  during  his  incumbency  of  said  office,  and 
shall  faithfully  discharge  all  duties  which  inav  be  re- 
quired of  him  by  any  law  enacted  subsequently  to  the 
execution  of  this  bond,  then  this  obligation  is  to  be 
void  and  of  no  effect,  otherwise  to  remain  in  full  force 

and  effect. 

I  Seal.] 

• ..[SealO 

(Insert  affidavit  of  (jualification  of  sureties  as  in  Sec- 
tion   ) 

State  of I 

Countv  of I 


1  do  s()l('mnl\-  swear  that  I  will   support  the   Consti- 
tution of  the  Inited  States  and  the  Constitution  of  the 
State  of    .  .  .  .,  and   that    1  will   faithfully  discharge-   the 
duties  of  a  receiver  in  the  above  entitled  matter. 
Subscribed  and  sworn  to  before  me,  | 

this  ....   da\-  of  .  .  .  .    iX.  ..  I 


^  XbS.     Notice  of    Receiver's    Sale  in    Insol- 
vency.    ( California. ) 

Notice  is  licrcb\  gi\(  II  thai  ihc  undersigned,  recei\-er 

ot  the  ('Stale  ot    ,111  insoU'enl  dctblor,  will,  on 

the   ....  (l,i\  of    iS.  .,  .ii  ihc   hour  ot   ....   o'clock 

.  .    M.,  in  iiurMiaiicc  ot  an  order  ot  the Court  ot 


sheriffs'  a\1)  cons'iahij-.s'  fokms.   ^sj  869,  870 

the  State  of  .  .  .  .,  in  and  for  the  Ccmntx  of made 

on  the   ....  day  of iS.  .,  in    the  matter  of  .     .  .  , 

an  insolvent  delator,  sell   at  |)ui)lic  auction,  to  the  high- 
est and  best  bidder,  for  cash,  at  .  .  .  . ,  Count\  of 

State  of  .  .  .  .,  the  following-  described  property,  to  wit : 
....   (description  of  property). 
Dated    18.  .. 


Receiver. 
Attorne)^  for  Receiver. 

^  869.    Notice    of    Creditors'    Meeting    after 
Assignment  by  Debtor.    {California.) 

Sheriff's    Office,  I 

Lountv  01   I 

18.  .. 

Notice  is  herebv  o'iven   that  a  meeting  of  the  crecli- 
tors  of  ...  .  will  be  held  at  my  office,  in  the  City  of  .  .  .  ., 

Countv    of    .  .  .  .,    State  of    ,   on    .  .  .  .dciy,    the 

....  day  of  .  .  .  . ,  18 .  . ,  at  ....  o'clock,  .  .  \i.,  for  the 
purpose  of  electing  one  or  more  assignees  in  mv  place 
and  stead  as  assignee  of  said  ,  .  ,  .,  for  the  benefit  o'i 
....  creditors. 

Dated ,   r8.  .. 


Sheriff  of  the  Countv  of 


§  870.    Assignment  by  Sheriff  for  Benefit  of 

Creditors.      ( California. ) 

This  indenture  made  this  ....  day  of  ...  .  18.  ., 
by  and  between  .  .  .  . ,  Sheriff'  of  the  County  of  .  .  .  . , 
State  of  California,  as  such  sheriff",  and  ....  wit- 
nesseth ; 


§8/0  sheriffs'  and  constables'  forms. 

That,  whereas,  on  the  ....  day  of  .  .  .  . ,  i8 , 

in  pursuance  of  the  provisions  of  Division  IV,  Title  3, 
Part  2,  of  the  Civil  Code  of  California,  did  assign  to 
said  sheriff  his  property  for  the  benefit  of  his  creditors, 
which  assiornment  was  in  writino-  and  was  dulv  recorded 
in  the  office  of  the  County  Recorder  of  said  .... 
County  on  the  ....  day  of 18 .  . ; 

And,  whereas,  the  sheriff  did  thereupon  cause  a  no- 
tice of  a  meeting  of  the  creditors  of  said  ....  to  be 
sent  bv  mail  to  each  creditor  named,  and  to  the  address 
given  in  said  assignment,  and  which  specified  the 
amount  owing  to  such  creditor,  as  set  forth  in  said  as- 
signment, and  notified  them  to  meet  at  his  office  in 

,  .  .  . ,  County  of  ,  State  of  .  .  .  . ,  on  ....  day,  the 

....  day  of  .  ,  .  .,  18.  .,  at  ....  o'clock  .  .  m.  of  that  day, 
for  the  purpose  of  electing  an  assignee  or  assignees,  in 
his  place  and  stead,  as  assignee  of  the  property  of  said 


And,  whereas,  said  sheriff  did  cause  a  notice  of  said 
meeting  of  creditors  to  be  published  for  one  time  in 
the  .  .  .  . ,  a  newspaper  published  in  said  ....  County, 
which  county  was  and  is  the  place  of  residence  of  said 

And,  whereas,  at  the  meeting  of  the  creditors  of  said 
.  .  .  .,  held  in  pursuance  of  the  aforesaid  notices,  which 
were  given  and  published  as  required  by  law  in  such 

cases  made  and  provided,  the  said by  a  majority, 

in  amount  of  the  demands  against  the  said pres- 
ent and  represented  by  i)r()xy,  was  duly  elected  assignee 
in  accordance  with  the  aforesaid  provisions  of  the  said 
Civil  Code; 

Now,  th(^refore,  in  consideration  ol  tht:  premises,  <uk1 
in  ]>iirsiian(:<-  o)  the  law  in  such  cases  made  and  pro- 
vided,  i Sh'Tiff  as  aforesaid,  do,  as  such  sheriff. 


sheriffs'  and  constables'  forms.  §§871,  872 

hereby  convey,  assign  and  set  over  to  said    as 

such  assignee,  and  to  his  successors  and  assigns,  upon 
the  trusts  provided  in  said  title,  all  and  singular  the 
property  of  every  kind  and  description  so  as  aforesaid 
assigned  to  me  by  the  said 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 
seal  this   ....   day  of  .  .  .  .,  18.  .. 
Signed,  sealed   and  delivered  j 

in  the  presence  of  

)  Sheriff  of  the  County  of 

.  .  .  .,  State  of   

§  871.    Application  for  Requisition. 

To    His    Excellency,     Hon ,   Governor    of   the 

State  of 

The  undersigned  respectfully  makes  this  his  applica- 
tion for  a  requisition  upon  the  Governor  of  the  State  of 
....  for  the  person  of  .  .  .  .,  a  fugitive  from  justice 
from  this  State,  whose  alleged  crime  is  set  out  in  the 
affidavit  and  warrant  accompanying  this  application, 
and  requests  the  appointment  by  your  excellency  of 
....  as  a  suitable  person  to  receive  and  bring  back  to 
this  State  said  fugitive  from  justice. 

Dated, ,  18.  .. 

§  872.    Affidavit  for  Requisition. 

In  the  Justice's  Court  of  ...  .  Township,  County  of 

State  of 

The  People  of  the  State  of   .  .  .  .  ^ 

'"■: i 

State  of ) 

County  of | 

,  being  duly  sworn,   deposes  and  says:  That 


^  Sy;^  SHKRIl'l-s"  AN'[)  CONSI  Ai;i.Ks'    FORM--. 

....  Stands  charged  in  the  ....   Court  ot   ....    Town- 
ship, Countv  ot    State  ot    with   haxiny,  on 

the    ....    da\'  ot    i8.  .,  committed   the   crime  of 

.  .  .  .  ;  that  a  complaint  is  on  file  in  said  comt  charging 
said  ....  with  the  commission  ot  said  crime,  upon 
which  complaint  a  warrant  has  been  dulv  issued  hv  the 
justice  of  said  court  for  the  arrest  of  said  .  .  .  .  ;  that 
said  ....  is  not  now  in  this  State,  but  has  tied  to  the 
.State  of  ....  and  is  now,  as  this  affiant  is  informed 
and  believes,  in  the  Citv  ot  .....  in  said  .State  ot  .  .  .  ., 
and  is  a  tugitive  trom  justice. 
Subscribed  and  sworn  to  before  me  | 

this   ....   dav  of 1 8  .  . .  


^  .S73.    Trial  Jury  Summons.     [California.) 

Sherift^'s  Office | 

...,.i8...      / 

Mr 

Sir:  lla\ing  l)een  regularlv  drawn  as  such,  you  are 
hereby  summoned  to  attend  the  Superior  Court.  Depart- 
ment  No of  ...  .  County,  at  the  Court   House, 

in  the  Cit\  of    in  said  county,  on the  .... 

day  of   A.    I).   18  .  . ,  at  .  .  .  .    o'clock    .  .   m.  of  that 

day,  then  and  there  to  serve  as  atrial  juror  tor  the  .... 
session  ot   said  court. 

llerein  fiil  not,  under  pena!t\'  of  the  law. 

Sheriff, 

l^y I)ei)uty  Sheriff. 


SUKRiri-s'  AM)  CONSI  AIU.KS'   IdKMS.    ^>j.S74-S7(:> 

i^  .S74     Special  Jury  Summons.    {California.) 

Shcriti's  (Jttice I 

kS...        ) 

Mr 

Sir:  You  are  hereby  summoned  to  attt-iKl  thf  Supe- 
rior Court,  Department   No of   ....   County,  at 

the  Court    House,  in  the  City  of   ...    ,  in  s;n\i   count)', 

on the    ....    day  of   a.    d.     iS.    ,   al     .... 

o'clock    .  .   M.  of  that  day,  then  and   there  to  ser\  e  as  a 
trial  juror  for  the  ....  session  of  said  court. 
Herein  fail  not.  under  penalty  of  the  law. 

.Sherift; 

Hy Deputy  .Sheriff. 

§  875.     Grand  Jury  Summons.     [California.) 

Sheriff's  Ofhce | 

18...       )" 

Mk 

Sir:  Having-  bt^en  regularly  drawn  as  such,  you  are 
hereby  summoned  to  be  and  appear  in  the  court  room 
of    Department    ....    of   the    Superior   Court  ot    the 

County  of in   the   Court    House  of  said   county, 

on    ....    day,  the    ....    day  of    a.  d.   18 .  . ,    then 

and  there  to  serve  as  a  grand  juror. 

Herein  fail  not,  under  penalty  of  the  law. 

Sheriff. 

1)V Deputy  Sheriff. 

§  876.    Monthly  Statement  of  Fees  to  Auditor. 

( California. ) 

Sheriff's  Office.  ) 
County  01 ) 

I Sheriff  of  said  countv,  herebv  certify  that 


^  Syy  sheriffs'  and  constables'  forms. 

the  total  amount  of  fees  due  from  me  to  the  county  treas- 
ury of  said  county,  for  the  month  of  .  .  .  . ,  i8.  .,  as 
shown    by   the   fee   book    in    my  office,  is  ....  dollars 

($    ...,ooj.  '.  ..,  Sheriff. 

By ,  Deputy  Sheriff. 

State  of   I 

Lountv  oi 


I.      ,  do  swear  that  the  tee  book   in  mv  office 

contains  a  true  statement,  in  detail,  of  all  fees  and  com- 
pensation of  every  kind  and  nature,  for  official  services 
rendered  by    me,   my  deputies  and  assistants,   for  the 

month  of    a.   d.    i8..,   and    that    said    fee    book 

shows  the  full  amount  received  or  chargeable  in  said 
month  and  since  my  last  monthly  payment;  and  neither 
myself,  nor,  to  my  knowledge  or  belief,  any  of  my  dep- 
uties or  assistants,  have  rendered  any  official  service, 
except  for  the  county,  which  is  not  fully  set  out  in  said 
fee  book,  and  that  the  foregoing  statement  thereof  is 
true  and  correct. 
Subscribed  and  sworn  to  before  me,  | 

this   ...   dav  of   .  .  .  .,  -S.  ..  «"  


>5  877.    Semi-Annual  Statement  of  Fees  to  Au- 
ditor.    ( California. ) 

Sheriff's   Office,  I 
Lounty  o\   ) 

I  hereby  certify  that  the  amount  of  fees  earned,  col- 
lected or  chargeable  by  me,  as for  the  six  months 

ending iS .  ..  is  ....  df)]lars  ($ ). 

Witness  in\   h.md  this  ....  day  of 18.  .. 

Sheriff 


SIIKRIFFS'  AM)  CONSTABLES'   FORMS.  ^  878 

State  of  .... ,      ] 


County  of   j      ■ 


I, ,  Sheriff  of  the  County  of   .  .  .  .,  do  swear 

that  the  foregoing  statement  is  true  and  correct. 
Subscribed  and  sworn  to  before  me,  | 

this   ....  day  of   .  .  .  . ,  1 8  .  . .  /  


§  S;S.    Monthly  Statement  of  Jailer  to  County 

Auditor.     ( California. ) 

List  of  Prisoners  Confined  in  the  Countv  Jail  of 
....  County  DURiNCi  the  Month  of  .....  i8.  .. 


Names. 


State  of   . 
Countv  of 


No.  of  Days.         I  Remarks. 


I, ,  Sheriff  of  the  County  of    .  .  .  . ,  do  swear 

that  the  foregoing  statement  is  true  and  correct. 
Subscribed  and  sworn  to  before  me,  | 

this  ....  day  of 1 8  .  . .  |  


INDEX. 


INDEX. 

\_NOTE.  —  An    index  of  the  blank  forms  contained  in    Chapter 
XXXI  is  to  be  found  at  the  end  of  this  volume.] 

ABSENCE  from  the  State,  74. 
ACCOUNTS,  falsification  of,  47. 
ACT  OF  GOD,  property  lost  by,  195. 
ACTIONS  against  sheriff,  623-656. 
ALIAS  writ,  issuance  of,  664. 
AMENDED  SUMMONS,  service  of,  128. 
AMENDMENT, 

of  attachment  return,  224. 

of  execution,  356. 

of  sheriff's  certificate,  462. 
APPEAL, 

costs  of,  on  redemption,  562. 

on  foreclosure,  bond  for,  584. 

when  releases  attachment,  299. 
APPOINTMENTS,  purchase  of,  18,  19. 
ARREST  AND  BAIL,  156-175. 

liability  of  sheriff,  167-170,  174. 

sheriff's  expenses,  163-4. 
ARREST, 

generally,  681-715. 

by  telegraph,  705. 

exemptions,  144,  159,  706-S. 

for  contempt,  148,  704. 

for  fraud,  157,  70^. 

how  made,  686-8. 

in  civil  actions,  156-175,  709. 


INDEX. 

in  nighttime.  690-2. 

of  fugitive  from  justice,  727. 

of  insane  persons,  703. 

of  witness,  144-8.  159. 

refusal  to  make,  714. 

service  of  warrant.  683-694. 

unlawful   713. 

when  homicide  justifiable,  715. 
ASSAULTS  by  officers,  52. 
ASSIGNMENT  of  funds  garni.sheed,  419. 
ASSISTANCE,  writ  of,  657-665. 
ATTACHMENT, 

generally,  202-231. 

claim  by  third  party,  279. 

conflict  ot  writs,  220-1,  377-8,  380. 

conducting  business  under,  252-3. 

contents  of  writ,  205. 

custody  of  writ,  206. 

custody  of  property,  245,  248. 

death  of  defendant,  298. 

deposit  to  release,  295. 

effect  of  insolvencv,  228-231. 

excessive  levy,  251. 

growing  crops,  31 1-3. 

holiday,  on,  213. 

instructions  to  officer,  207. 

inventory  of  property,  222. 

irregularitv  of,  204,  209. 

leviable  property,  216-7. 

levy  upon  fixtures,  621. 

lien,  how  enforced,  218. 

lien  in  replevin,  195. 

moneys  in  custody  of  law,  217a. 

new  summons,  219.  j 

of  mortgaged  personal  property,  304-310.  T' 

of  partnership  property,  255. 

of  personal  property,  232-322. 

of  pledged  properly,  315-320. 

of  property  in  receiver's  hands,  261. 

of  rf-al  prof)ertv,  323-338. 


INDEX. 

ATTACHMENT  (continued), 
priority  of  levies,  220-1. 
return  of  writ,  222-5. 
regularity  of  writ,  204,  209. 
release  of,  290-300,  302,  338. 
release  by  appeal,  299. 
removal  of  property,  250. 
request  to  garnishee,  262. 
responsibility  of  officer,  249. 
undertaking  for,  208. 
undertaking  to  release,  292-3. 
void  levy,  instances,  247. 
what  acts  justified,  243. 
what  property  leviable,  259-261. 

ATTORNEY, 

sheriff  must  not  act  as,  42. 

sheriff  not  to  have  as  partner,  42. 

visits  to  prisoners,  758. 
BADGES  for  sheriff,  54. 
BAILIFF,  sheriff  to  act  as,  24. 
BENCH  WARRANT,  service  of,  712. 
BOARDING  of  prisoners,  expense,  755. 

BOATS. 

attachment  of,  238-9. 

execution  sale,  426-7. 

service  of  summons  against,  109. 
BOILERS,  as  fixtures,  613. 
BOND, 

official,  7. 

defects  in,  no  defense,  639. 

of  deputies,  14. 

ol  ex  officio  officers,  9. 

to  release  execution,  401. 

to  sheriff  on  claim  of  third  party,  2S1,  283. 

special  liability  on,  8. 

withdrawal  of  sureties,  76. 

BOND  OF  INDEMNITY, 
actions  upon,  645-7,  649. 
liability  on,  640-7. 
on  restitution,  679. 


36 


INDEX. 

BONDSMEN  (see  "Sureties"). 

BREACH  of  duty,  generally,  49. 

BRIBERY  of  officer,  50,  88. 

BUILDING  MATERIALS,  when  not  attachable,  26c. 

BUILDINGS, 

as  fixtures,  614-5. 

as  personal  property,  240. 
BURDEN  OF  PROOF  as  to  exemption?,  498. 
BUSINESS  under  attachment,  252-3. 
CATTLE  in  herds,  transfer  of,  606. 
CERTIFICATE  of  sale,  428,  460. 
CERTIFICATES,  issuance  of  false,  51. 
CITATIONS,  154-5. 

CITIZEN,  fees  for  service  of  process,  778. 
CHOSES  IN  ACTION,  execution  sale,  413. 

CLAIM, 

by  third  party,  attachment,  279. 

by  third  party,  execution,  429. 

of  exemption,  how  made,  517-8. 

when  to  be  made,  513-5. 
CLAIM  AND  DELIVERY,  176-197- 
CLASSIFICATION  of  prisoners  in  jails,  745. 

CLOUD, 

on  title  by  execution  sale,  479. 

on  title  of  homestead,  530. 
COLLATERAL  attack  upon  execution  sale,  359. 
COMMISSIONER,  sale  by,  590. 
COMPENSATION  to  successor  in  certain  cases,  83. 
COMPUTATION  of  time,  90. 
CONFINEMENT  of  prisoners,  742,  746. 
CONFLICT  of  attachments,  377-8,  38c. 
CONFISCATION  of  fish  nets  unauthorized.  89. 
CON.SOLIDATK^N  with  Tax  Collector,  12. 

CONSTABLES, 
duties  of,  94- 
appointint-nt  of  deputies,  95. 


I 


INDEX. 

CONSTABLES  (continued), 

fees  for  certain  arrests,  97. 

law  governing,  96. 

(see  also  "Officer"). 
CONTEMPT"  OF  COURT,  arrest  for,  14S,  704. 
CONTRACTS,  officer  not  to  be  interested  in  certain,  78,  81. 
CONVEYANCE, 

effect  upon  redemption,  536. 

of  real  property  under  attachment,  469. 
CONVICTION  of  certain  offenses,  75. 

CORONER, 

fees  for  sheriff's  duties,  68,  777. 

when  to  execute  process,  66. 
CORPORATE  STOCK,  garnishment  of,  274,  276. 

CORPORATIONS, 

criminal  summons  against,  129. 

garnishment  of,  271. 

service  of  summons  upon,  104-6. 
COSTS  of  appeal  in  redemption,  562. 
COUNSEL,  to  visit  prisoner,  75S. 
COUNTY  DEBTS, 

inhabitants  not  liable,  410. 
COUNTY  JAIL,  generally,  742-765. 
COURT  BAILIFF,  sheriff  to  act,  24. 
COURT  MARSHAL,  process  of,  29 
COURT  ROOMS,  when  sheriff  to  provide,  34. 
CREDITS  allowable  to  prisoners,  762. 
"CREDITS"  on  garnishment,  defined,  270. 
CRIMINAL  SUBPCENA, 

issuance,  149. 

service,  150. 
CRIMINAL  SUMMONS  against  corporation,  129. 
CROPS,  attachment  of,  31 1-4. 
CRL^ELTY  to  prisoners,  763. 
CURRENCY  receivable  upon  redemption,  55C-1. 
CUSTODY, 

of  prisoners,  working,  756-7. 

of  property  attached,  245,  248. 


INDEX. 

DAMAGES, 

against  officer,  measure  of,  632. 

for  detaining  property,  632. 
DEAD  BODIES,  disposition  of,  45. 
DEATH. 

of  party,  issuance  of  execution,  345. 

of  defendant  in  attachment,  298. 

of  defendant  in  execution,  383. 
"DEBTS"  on  garnishment,  defined,  270. 
DEED  OF  SHERIFF, 

generally,  476-8.  564-575. 

execution  by  deputy,  575. 

how  meaning  ascertained,  571. 

is  evidence  against  whom,  570,  572. 

mandamus  to  obtain,  574. 

recitals  necessary  in,  567. 

what  conveyed  by,  566. 

when  due,  564. 

when  premature  void,  573. 

when  takes  effect,  565. 
DEFECTIVE  bond,  effect  of,  639. 
DELAY, 

in  execution  of  writs,  26,  26a,  99,  11 1-2,  241-2,  350. 

liability  for,  26a,  61,  242. 

of  examination  of  prisoner,  697. 
DEMAND,  when  necessary,  627-8. 
DEPOSIT  to  release  attachment,  295. 

DEPUTY, 

appointment,  13. 

buying  appointment,  18,  19. 

contlicting  levies,  656. 

constables,  api)ointment,  95. 

execution  of  sheriff's  deed,  575. 

for  new  courts,  16. 

liability  for  acts  of  652,  17. 

oath  and    bond,   14. 

powers  and  dnlics,  15. 

fiualitications,  13. 

recovery  of  rcwiird,  734. 


INDEX. 

DEPUTY  (continued), 
salary  of,  767-S. 
under  sheriff,  54a. 

DESCRIPTION  of  property  in  replevin,  192. 
DIRECTIONS  to  be  in  writing,  55 
DISCHARGE  in  arrest  and  bail.  165,  175. 
DISOBEDIENCE  of  void  order.  379. 
DIVISION  of  county,  salaries,  781. 
DOORS,  breaking  of,  to  make  arrest.  688. 
DUELS,  prevention  of,  37. 
DURESS  of  goods,  liability  for,  630. 

DUTIES, 

at  common  law,  2. 

as  to  wrecks,  32. 

breach  or  omission,  49. 

in  insolvency  cases.  31. 

of  constables,  94. 

of  deputies,  15. 

of  sheriff,  generally,  3,  22. 

specially  conferred,  27. 
EARNINGS  of  debtor,  exemptions,  482,  495,  509-510. 
EfECTMENT,  who  bound  by  judgment,  669. 
ELECTION  of  sheriff,  time,  5. 
ELECTORS,  exemption  from  arrest,  159,  706. 
ELIGIBILITY  to  sheriff's  office,  4. 

ELISORS. 

fees,  68,  777. 

when  to  act,  67. 
EMBEZZLEMENT  by  sheriff,  47. 
ENGINES  as  fixtures,  613. 

EQUITABLE  claim,  not  subject  to  execution,  412. 
ERASURES  in  return,  126. 
ERRONEOUS  suspension,  salary,  782. 
ERROR  in  writ  of  restitution,  680. 
ESCAPE, 

civil  liability  of  sheriff,   168-170. 

computation  of  term,  761. 


INDEX. 

ESCAPE  (continued), 

from  jail,  168-170,  760. 

penalty  for,  760. 

retaking  of  prisoner,  700. 
ESTATE  FUNDS,  garnishment  of,  273. 
ESTATE  of  decedent,  redemptions,  547 
ESTOPPEL, 

in  sheriff's  deed,  569. 

of  owner  of  property,  289,  442. 

protecting  sheriff,  648. 
EVASION  of  process,  restitution,  673. 
EXAMINATION, 

of  debtor  on  garnishment,  266. 

of  prisoner,  696. 
EXCESSIVE  levy  in  attachment,  251. 
EXECUTION, 

generally,  339-398- 

against  pledged  property,  409. 

amendment  of,  356. 

arrest  and  bail,  163-4,  ^68. 

before  entry  of  judgment,  346. 

blank  forms  on,  814-6,  853-866. 

certificate  of  sale,  428. 

claim  by  third  party,  429. 

contents  of  writ,  349. 

delay  in  service,  350. 

earnings  of  debtor,  4S2-495,  509-510. 

effect  of  insolvency,  391-2. 

exemptions,  480-532. 

from  justice's  courts,  394-8. 

garnishment  and  demand,  417-9. 

how  executed,  generally,  365-7. 

in  foreclosure,  issuance,  342. 

irregularities  in,  353,  357. 

levy  upon  corporation  stock,  408. 

levy  upon  fixtures,  621. 

levy  upon  homestead,  524,  529-531. 

levy  upon  judgment,  406. 

levy  upon  jjersonal  property,  399-434. 

levy  upon  real  property,  436-479. 


INDEX. 

EXECUTION  (continued), 

liability  for  wrongful  sale,  430. 

nature  of,  512. 

notice  of  sale  of  real  property,  444-6. 

personal  property,  399-435- 

proceeding's  upon,  368. 

quashing  of,  364. 

real  property,  436-479. 

real  property  subject  to,  437-441. 

recall  of,  343. 

receipt  of  writ,  347-8. 

release  of,  435. 

relief  from  sale,  472-5. 

resale  of  property,  374. 

return  of,  3S5-390. 

sale  after  return  day,  372. 

sale,  application  of  proceeds,  366-7. 

sale,  application  of  proceeds,  366-9,  377,  379,  381-2. 

sale,  how  conducted,  370. 

sale  of  choses  in  action,  413. 

sale  of  franchise,  421-3. 

sale  ot  mortgaged  property,  424-5. 

sale  of  personal  right,  421-3. 

sale  of  vessels,  426-7. 

sale,  payments,  376. 

sale,  possession  and  title,  563. 

sale,  postponement,  373. 

sale,  title  of  purchaser,  375,  466-471. 

sale,  when  valid,  358-9,  364. 

sale,  without  notice,  371. 

stay  of,  362-3. 

supplementary  proceedings,  420-3. 

upon  grain  crop,  433. 

void  and  voidable  writs,  352-5. 

what  subject  to,  339,  357,  365-7. 

when  may  issue,  341-2,  344. 

EXEMPTIONS, 

burden  of  proof,  498. 
claim  when  to  be  made,  513-5- 
construction  of  statutes,  497. 
from  arrest,  144,  159   7o6-8a. 


INDEX. 

EXEMPTIONS  (continued), 

from  execution,  480-532. 

grain  on  homestead  land,  521. 

homestead,  483-496.  522-531. 

how  claim  made,  517-9. 

in  insolvency,  508,  532. 

interest  in  common,  511. 

joint  claim,  effect,  519. 

joint  ownership,  522. 

nature  of,  512. 

of  laborer,  482-495.  503-4,  506,  50S-9. 

salaries  of  officers,  509-510. 

stallion,  505. 

teamster,  482-495,  502.  504,  508-9. 

time  of  claim,  513-5. 

tools,  etc.,  506. 

waiver  of,  510. 
EXPENSES, 

arrest  and  bail,  163-4. 

boarding  prisoners,  755. 

conveying  insane,  7S3. 

conveying  prisoners,  783. 

extradition,  728. 

keeping  property  levied  upon,  257,  301-3,  403. 

of  publication,  prepayment,  772. 

pursuit  of  criminals,  785-6. 
EXPIRATION  of  term,  82-4. 
EXTRADITION, 

no  fees  upon,  730. 

of  criminals,  724-730. 
FALSIFICATION  of  accounts,  47. 
FEE  BOOK  to  be  kept,  771. 
FEES  AND  SALARIES, 

generally,  766. 

l)ills  against  county,  7S9-791. 

book  to  i)e  kept.  771. 

certain  arrests  by  constables,  97. 

lien  of  officer,  775  6,  254,  302-3. 

none  on  extradition,  730. 

none  on  luthcas  corpus,  723,  792. 


IXDKX. 

FEES  AND  SALARIES  (continued), 

of  citizen  for  service,  778. 

of  coroner,  68,  777. 

of  elisor,  68,  777. 

penalty  for  receiving  illegal,  779. 

prepayment  required,  769. 

receipt  to  be  given,  770. 

settlement  with  treasurer,  780. 

sheriff's  keeper,  774. 

to  be  paid  before  release,  302-3. 

unsuccessful  pursuit,  786. 
FIRE,  removal  of  prisoners,  749. 
FISH  nets,  confiscation  unauthorized,  89. 
FIXTURES, 

generally,  608-622. 

construction  of  statutes,  610-2. 

how  levied  upon,  621. 

leading  case  in  California,  622. 

FORCE,  use  in  making  arrest,  687. 
FORCIBLE  ENTRY  and  detainer,  676-7. 
FORECLOSURE, 

generally,  576-590. 

against  insolvent,  392. 

issuance  of  second  order,  581. 

no  levy  necessary,  577. 

order  of  sale,  when  may  issue,  342 

partner's  interest,  587. 

redemption,  588 

removal  of  improvements.  586. 

return  of  sale,  390,  579-580. 

sale  by  commissioner,  590. 

stay  by  appeal,  584. 

title  of  purchaser,  585. 
FORM, 

of  judgment  in  replevin,  189-19 1. 

return  of  summons,  116-122. 
FORMS  for  sheriff's  use,  Chap.  XXXI. 
FORTHCOMING  bond,  401. 
FRANCHISE, 

execution  sale,  423. 

redemption  of,  548. 


INDEX. 

P'RAUD,  in  service  of  summons,  114. 
FRAUDULENT  transfers,  591-607. 
FUGITIVES  from  justice,  724-730. 
GAMBLERS,  prosecution  of,  41. 
GARNISHEE,  collection  from,  268. 
GARNISHMENT, 

blank  forms  on,  81 1-3. 

in  California,  264. 

in  other  States,  232-7,  269. 

liability  of  garnishee,  267. 

limit  of  examination,  266. 

moneys  in  sheriff's  hands,  267a. 

nature  of,  263. 

of  corporate  stock,  274,  276. 

of  corporations,  271. 

of  estate  funds,  273. 

offset  allowable,  272. 

of  lessee's  interest,  278. 

of  mortgage,  275. 

on  execution,  417-9. 

request  to  garnishee,  262. 

supplementary  proceedings,  420-3. 

when  not  a  lien,  277. 
GIP~T  from  husband  to  wife,  416. 
GOODS,  retaking  from  officer,  87. 

GRAIN, 

crop,  levy  of  execution,  433. 

on  homestead  land,  exemption,  521. 

GROWING  CROPS,  attachment  of,  31 1-3 

GUARD  for  jail,  752. 

HABEAS  CORPUS, 
generally,  716-723. 
blank  forms  for  return,  828-832. 
no  fees  all()wal)I(",  723,  792. 
proof  of  service,  720. 
receipt  of  writ,  716. 
return  of  writ,  719. 
service  of  writ,    717-.'^,  722. 


II 


INDEX. 

HANDCUFFS,  when  not  to  be  used,  711. 
HOLIDAYS, 

attachment  writ,  213. 

in  CaHfornia,  enumerated,  92. 

performance  next  day,  91. 

receipt  of  writ,  64,  348. 

replevin  on,  197. 

service  oi  habeas  corpus,  722. 
HOMESTEAD, 

effect  of  judgment,  526-8. 

exemption,  483-496,  522-531. 

grain  on,  521. 

injunction  against  sale,  531. 

levy  of  execution,  524,  529-531. 

levy  upon,  524. 

priority  over  mortgage,  520. 

use  as  hotel,  523. 
HOMICIDE  by  officer,  when  justifiable,  86,  715. 
HOTEL,  use  of  homestead  for,  523. 
HUSBAND,  gift  to  wife,  416. 
"IDEM  SONANS,"  return  of  summons,  119. 
ILLEGAL  FEES,  penalty  for  receiving,  779. 
ILLEGAL  LEVY,  liability  of  officer,  626. 
IMPLEMENTS  OF  TRADE,  exemption  of  500,  506. 
IMPROVEMENTS,  removal  of,  586. 
INDEMNITY  BOND, 

actions  upon,  645-9. 

in  claim  and  delivery,  187. 

on  claim  by  third  party,  279-2S2,  287. 

on  restitution,  679. 

to  sheriff,  640-649. 

INHUMANITY  to  prisoners,  763. 

INJUNCTION,  198-201. 

against  sale  of  homestead,  531. 
against  void  judgment,  396. 
blank  forms  of  return,  826-7. 
by  whom  served,  199. 
how  served,  198. 


INDEX. 

INJUNCTION  (continued), 

return  of  execution,  388. 

when  served,  200. 
INJURIES  to  jails,  765. 

INNOCENT  PURCHASER  at  execution  sale,  471. 
INSANE  PERSONS. 

arrest  of,  703. 

expense  of  conveying,  783. 

service  of  summons  on,  104. 
INSOLVENCY, 

appointment  as  receiver,  30,  31. 

effect  upon  attachment,  228-231. 

effect  upon  execution,  391-2. 

exemptions,  508,  530. 
INSPECTION  of  sheriff's  records,  21. 
INSURANCE  on  homestead,  exemption,  525. 
INTEREST,  computation  of,  384. 
INTRUDERS  on  State  lands,  removal,  33. 
INVENTORY, 

of  attached  propertv,  262. 

property  under  execution,  404. 
IRREGULARITIES  in  executions,  353,  357. 
ISSUANCE  of  attachment,  when  void,  203. 
JAIL, 

county,  orenerally,  742-765. 

escapes  from,  760. 

guard  for,  752. 

injuries  to,  765. 

JOINDER  of  sureties  in  suit  against  officer,  636. 
JOINT  PROPERTY,  levy  of  execution,  431-4. 
JUIKiMENT, 

effect  on  lioniestead,  52(')-8. 

execution  before  entry,  346. 

in  claim  and  deli\ery,  1 89-1 91. 

in  ejectment,  hind^  whom,  669. 

interest  on,  384. 

levy  of  execution  upon,  406. 

lien  in  redemjition,  561. 

set  aside  after  levy,  361. 

.set  off  on  execution,  635. 


i 


INDEX. 

JURISDICTION, 

indemnity  bond,  649. 
of  oftenses,  701. 

JURORS, 

food  and  lodging  for,  46. 
sherifi"  to  summon,  25. 
JUSTICE'S  COURT 
execution?,  394-S. 
summons  from,  130. 
transcript,  execution  on,  344. 

JUSTIFIABLE  HOMICIDE  by  officer,  715. 

KEEPER. 

fees  and  expenses,  257,  301-3,  774. 

in  attachment,  suggestions,  256. 
LABORER,  exemptions  from  sale,  4S2-495,  503-4,  506,  508-9. 
LARCENY  of  records,  48. 
LEASE,  fixtures  on  property,  616-8. 
LEASED  PROPERTY,  garnishment,  27S. 
LEASEHOLD  INTEREST,  execution  sale,  459. 
LEGAL  HOLIDAYS,  enumerated,  92. 
LEGISLATORS,  exemption  from  arrest,  707. 

LEVY, 

by  officer  and  by  deputy,  656. 

none  on  foreclosure,  577. 

of  attachment,  excessive,  251. 

of  attachment,  void,  247. 

of  execution,  death  of  defendant,  3S3. 

of  execution,  generally,  365-7.  ' 

of  process,  liability  for  refusal,  62. 

upon  mortgaged  personal  property,  633. 

when  illegal,  626. 

LIABILITY, 

for  delay  in  service,  26a. 

for  delay  of  examination,  697. 

for  deputies'  acts,  17,  652. 

for  levy  on  mortgaged  property,  309. 

for  refusal  to  levy,  62. 

for  trespass,  631. 


INDEX. 

LIABILITY  (continued), 

for  wrongful  sale,  430. 

in  arrest  and  bail,  167-170,  174. 

of  officer,  exempt  property,  516. 

of  sure  lies,  637. 

on  indemnity  bond,  642. 
LIEN, 

foreclosure  against  insolvent,  392. 

of  officer  for  fees,  254,  775. 

upon  personal  property,  attachment,  315-320. 

upon  personal  property,  waiver,  321. 
LIMITATION  OF  ACTIONS, 

against  sheriffs,  623-5. 

against  sureties,  624. 
LIS  PENDENS,  when  not  applicable,  672. 
LOSS  of  property  replevied,  194. 
LOTTERY  TICKETS,  search  warrant  for,  741. 
MACHINERY,  as  fixtures,  613. 
MAGISTRATE,  proceedings  before,  696-S. 
MANDAMUS, 

to  obtain  sheriff's  deed,  574. 

writ  of  restitution,  676. 
MEASURE  OF  DAMAGES  against  officer,  632. 
MILEAGE, 

for  unsuccessful  pursuit,  786. 

how  computed,  773. 
MILITIA,  exemption  from  arrest,  707. 
MININfi  claim,  liable  to  execution,  441. 
MIN(JRS,  serxice  of  summons  upon,  104,  107. 
MONEYS, 

faihire  to  pay  over,  47,  63,  650. 

{)ayment  to  treasurer,  44. 
MORTCiAGE, 

foreclosure  against  insolvent,  393. 

garnishment  of,  275. 

of  lease,  effect  on  fixtures,  61.S. 

priority  of  homestead,  520. 

M()RT(;a(;i:i)  property, 

.-itt.icIiMiint,  304-310. 


i 


INDEX. 

MORTGAGED  PROPERTY  (continued). 

execution  sale,  424-5. 

levy  upon,  633. 
MOTION,  remedy  against  sheriff,  651. 
MUTILATION  of  records,  48. 

NEGLECT, 

to  levy  execution,  351. 

to  pay  over  moneys,  47,  63,  650. 
NIGHTTIME, 

defined,  692. 

arrest  during,  690-2. 
NOTICE, 

defined,  23. 

of  pendency  of  action,  672. 

of  suit  to  sureties,  63S. 

preferred  labor  claim,  227. 

sale  of  personal  property,  405. 
OATH  OF  OFFICE, 

generally,  6. 

of  deputies,  14. 

power  to  administer,  43. 
OCCUPANCY,  writ  of  restitution,  67S. 
OFFENSES,  prevention  of,  36. 
OFFICE, 

where  to  be  kept,  20. 

wrongful  assumption  of,  10,  11. 
OFFICE  HOURS  of  sheriff,  20. 
OFFICER  (see  also  "Sheriff"), 

assault  by,  52. 

exemption  of  salary,  509. 

joinder  of  sureties  in  suit,  636. 

liability  for  deputy,  652. 

liability  for  detaining  witness,  146. 

liability  for  trespass,  631. 

liable  on  sale  of  exempt  property,  516 

lien  for  fees,  775. 

limitation  of  actions  against,  623-5. 

mandamus  against,  676. 

measure  of  damages  against,  632. 

refusal  to  aid,  685. 


INDKX. 

OFFICER  (continueaj, 

refusal  to  arrest,  714 

refusal  to  receive  criminal,  757. 

release  by  stipulation,  654. 

remedy  aa^ainst  by  motion,  651. 

unauthorized  arrest,  713. 

when  not  responsible,  653. 
OFFICIAL  BOND,  7. 
OFFSET  on  garnishment,  272. 
OMISSION  OF  DUTY,  generally,  49. 
ORDER  OF  SALE, 

in  foreclosure,  578,  581-2. 

when  may  issue,  342. 
ORIGIN  of  the  sheriff's  office,  i. 
PAROL  EVIDENCE  as  to  sherift"'s  sale,  56S. 
PARTNER'S  INTEREST,  foreclosure  upon.  5S7. 

PARTNERSHIP, 

attachment  of  property,  255. 

execution  against  property,  431-4- 

priority  ol  creditors,  432. 

service  of  summons  upon,  108. 
PARTNERSHIP  JUDGMENT,  redemption,  546. 
PATENT  RIGHT,  execution  sale,  421-2. 

PAYMENTS, 

at  execution  sale,  376. 

under  protest,  redemption,  553. 
PENALTY, 

for  delay  in  service,  26a. 

for  non- return  of  process,  6r. 

for  refusal  to  levy,  351. 
PEK1-"(;RMANCE  of  act  falling  on  holiday,  91. 
PERISHABLE  PROPERTY,- sale  of,  322. 
PERSONAL  PROPERTY, 

attachment  of,  232-322. 

mortgaged,  levy  upon,  633. 

void  transfers,  591-607. 

PI^STILENC'E,  removal  of  i)risoners,  750. 
I'LI-.A  I  >l  \<  iS  in  suits  against  ()(fi(-(  |-,  629,  645. 


INDEX. 

PLEDGED  PROPERTY, 

attachment  of,  315-320. 

levy  of  execution,  409. 
POSSE  COMITATUS,  22,  23a,  38,  6S4. 
POSSESSION, 

of  personalty,  change  of,  591-607. 

pending  redemption,  554,  563,  589. 

POSTPONEMENT  of  execution  sale,  373. 
POWER  OF  THE  COUNTY  (see  "POSSE,"  etc.). 
POWERS  of  deputies,  15. 
PREFERRED  CLAIMS  in  attachment,  226. 
PRELIMINARY  EXAMINATION  of  prisoner,  696. 
PREMATURE  sheriff's  deed,  void,  573. 
PREPAYMENT  of  fees  required,  769. 
PREVENTION, 

of  duels,  37. 

of  offenses,  36. 
PRIOR  LIENS,  payment  on  redemption.  545. 
PRIORITY, 

of  attachments,  220-1. 

of  partnership  creditors,  432. 

PRISONERS, 

carrying  articles  to,  764. 

classification  of,  745. 

confinement  of,  746. 

counsel  to  visit,  758. 

credits  allowable,  76s. 

examination  of,  696. 

expense  of  boarding,  755. 

expense  of  conveying,  783. 

inhumanity  to,  763. 

on  civil  process,  754. 

production  as  witnesses,  140,  151,  710. 

removal  from  jail,  748-750. 

rescue  of,  695,  759. 

service  of  papers  upon,  751. 

taking  weapons  from.  689. 

when  not  to  be  handcuffed,  711. 

working  of,  756. 


INDEX. 

PROCEEDINGS  upon  execution,  36S. 

PROCEEDS  of  execution  sale,  366-9,  377,  379,  38 1-2. 

PROCESS, 

defined,  23. 

delay  in  execution  of,  26,  26a,  99,  11 1-2,  241-2.  350. 

liability  for  failure  to  return,  61. 

liability  for  refusal  to  levy,  62. 

of  court  martial,  29. 

regularity  of,  56,  160,  204,  352-3,  377. 

resistance  to,  23a. 

return  to  another  county,  59. 

service  upon  sheriff,  58. 

when  executed  by  coroner,  66. 

when  execution  is  justified,  56. 

when  to  be  exhibited,  57. 

PROMISSORY  NOTE,  levy  of  execution,  407. 
PROPERTY  attachable,  259-261. 
PROVISIONS,  exemption  of,  482-495.  50S. 
PUBLIC  LANDS,  buildings  as  fixtures,  619. 
PL^BLICATION,  prepayment  of  expenses,  772. 
PURCHASE  at  certain  sales  prohibited,  79.  Si. 
PURSUIT  of  criminals,  expense  of,  785-6 
QUALIFICATION,  sureties  in  bond,  7. 
QUASHING  of  execution.  364. 
REAL  PROPERTY, 

attachment  of,  323-338. 

certificate  of  sale,  460.  • 

notice  of  execution  sale,  444-6. 

redemption  of,  463,  533-563- 

sale  en  masse,  453-6. 

sale  on  execution,  436-479. 

subject  to  execution,  437-441. 
RECALL  of  execution,  343. 
RECEIPT  for  fees  to  be  given.  770. 
RECEIVER,  attachment  of  property  in  hands  of,  261. 
RIXJORDS,  • 

larceny  of,   48. 

to  he  open  to  ins|)C(tion,  21. 


INDEX. 

REDEMPTION  after  execution  sale, 

generally,  533-563- 

after  foreclosure,  588. 

by  whom  made.  535-8 

equitable  right,  55S-560. 

franchise,   548. 

how  defeated,  552. 

land  of  decedent,  547. 

payment  of  judgment  lien,  561. 

possession  pending,  554. 

time  of,  539. 

when  allowed,  534. 
REDEMPTIONERS,  who  are,  535-8. 
REFUSAL, 

of  officer  to  arrest,  714. 

to  aid  officer,  685. 

to  levy  execution,  351. 

to  pay  over  money,  47,  63,  650. 
REGULARITY  of  process,  56,  204,  352-3,  377,  160. 

RELEASE, 

of  attachment,  290-300,  302,  338. 

of  execution,  401,  435. 

payment  of  fees,  302-3,  776. 
RELIEF  from  execution  .sale,  472-5. 
REMOVAL, 

intruders  on  State  lands.  33. 

of  officer,  72,  73. 

of  prisoners,   748-750. 

property  attached,  250. 
RENTS,  pending  redemption,  555-7- 
REPLEVIN, 

generally,  176-197. 

blank  forms  for  return,  S17-8. 

from  sheriff,  288. 

when  will  not  lie,  634. 
REQUISITION  for  fugitives,  726-9. 
RESALE  of  real  property  on  execution,  46-1. 
RESCL'E  of  prisoners,  695,  759. 
RESIDENCE  of  sheriff.  20. 


INDEX. 

RESIGNATIONS,  to  whom  sent,  71. 
RESISTANCE, 

to  process,  23a,  38,  684. 

to  officers,  85. 
RESTITUTION,  writ  of,  666,  680. 
RETAKING  after  escape,  700. 
RETAKING  goods  from  officer,  87. 
RETURN, 

blank  forms  for,  793-840 

on  attachment,  222-5,  337- 

of  execution,  385-390. 

on  habeas  corpus,  719-720. 

of  process,  generally,  59-61. 

of  sale  on  foreclosure,  579-580- 

on  search  warrant,  738. 

of  summons,  116-123,  126-7. 

REWARDS,  731-4. 
RIOTS,  suppression  of,  38-40. 
ROOMS  required  in  jails,  743. 
SALARIES, 

division  of  county,  781. 

erroneous  suspension,  782. 

exemption  from  execution,  509-510. 

fees  and,  generally,  766-792. 

no  increase  during  term,  787. 

of  certain  deputies,  16. 

settlement  before  drawing,  780. 

SALES, 

after  exemption  claim,  516. 

officer  not  to  purchase  at  certain,  79,  Si. 

of  perishable  property,  322. 

under  execution,  how  conducted,  370. 

under  foreclosure,  576. 

when  stay  ordered,  313. 

SALVA(iP:,  sheriff  entitled  to,  784. 

.SCRIP,  etc.,  officer  not  to  deal  in,  80,  Si. 

SEARCH  WARRANTS,  735-741. 
blank  forms  on,  S22-4. 


INDKX. 

SEIZURE,  justification  ot",  629. 
SERVICE 

citat.ion,  155. 

civil  subpoena,  137. 

criminal  subpoena,  150. 

fees  of  citizen  for,  778. 

habeas  corpus,  7178. 

injunction,  198-201. 

papers  upon  prisoners.  751. 

search  warrant,  736-7,  739. 

summons,  unauthorized,  132. 

to  be  made  promptly,  26. 

upon  sheriff,  how  made,  58. 

writ  by  telegraph,  65. 
SET-OFF  of  judgments,  635. 
SHERIFF  (see  also  "Officer"). 
SHERIFF'S  DEED,  564^575,  476-S. 

blank  forms  for,  865-6. 

execution  by  deputy,  575. 

how  meaning"  ascertained,  571. 

is  evidence  against  whom,  570,  572. 

mandamus  to  obtain,  574. 

recitals  necessary  in,  567. 

what  conveyed  by,  566. 

when  due,  569. 

when  takes  effect,  565. 

when  premature,  \'oid,  573. 
SHERIFF'S  JURY.  282,  286. 
STALLION,  when  exempt,  505. 
STATE  LANDS,  removal  of  intruders,  33. 
STAY  OF  EXECUTION,  362-3,  389. 

on  appeal  in  foreclosure,  584. 
STIPULATION  for  release  of  officer,  654. 
STOCK  OF  CORPORATION,  levy  of  execution,  408. 
SUBPCENA, 

generally,  133. 

civil,  134-148. 

criminal,  149-153. 
SUCCESSOR,  compensation  in  certain  cases,  83. 


INDEX. 

SUITS  against  sheriffs,  623-656. 

SUMMARY  PROCEEDINGS  for  removal,  72. 

SUMMONS, 

generally,  98-132. 

blanks  for  return,  793-802. 

by  whom  served,  102. 

correction  of  return,  127. 

criminal,  against  corporation,  129. 

delay  in  service,  99,  11 1-2. 

effect  of  sheriff's  return,  124. 

erasures  in  return,  126. 

form  of  return,  1 16-122. 

fraudulent  service,  114. 

in  Justice's  Courts,  130. 

no  service  after  return,  125. 

office  of,  98. 

receipt  by  officer,  100. 

refusal  of  service,  113. 

return  by  deputy,  122. 

return  of  service,  11 5-1 27. 

.service,  generally,  103. 

service  against  vessels,  109. 

service  by  citizen,  123. 

service  on  corporations,  104-6. 

service  on  insane  persons,  104. 

service  on  minors,  104,  107. 

service  on  partnership,  loS. 

service  to  be  personal,  no. 

unauthorized  service,  132. 
SUPERVISORS. 

attendance  upon,  28. 

examination  by,  53. 
SUPPLEMENTARY  PROCEEDINliS  on  execution,  420-3. 
SURPLU.S  on  execution  sale,  382. 

sCreties, 

arrest  and  bail,  17 1-2. 
defects  in  bond,  effect  of,  639. 
in  claim  and  delivery,  1 78- 180. 
joinder  of,  636. 
liability  of,  631,  637. 


INDEX. 

SURETIES  (continued), 

limitation  of  actions  againstr  624. 

notice  of  suit,  63S. 

on  indemnity  bond,  642. 

withdrawal  of,  76. 
SURRENDER  of  books,  etc.,  to  successor,  S4 
TAX  COLLECTOR, 

consolidation  with,  12. 

ofhce  separate,  655. 
TEAMSTER,  exemptions,  482-495,  502,  504,  50S-9. 
TELEGRAPH, 

arrest  by,  705. 

service  of  writ  by,  65. 
TENDER  on  redemption,  549a. 
TERM  of  imprisonment,   escape,  761. 

of  office,  5 
THRESHING  MACHINE,  when  exempt,  507. 
TIME,  computation  of,  90.  91. 

TITLE, 

conveyed  by  execution  sale,  375,  466-471. 

foreclosure  sale,  585. 

when  passes,  563. 
TOLL  ROAD,  execution  sale,  414. 
TOOLS  AND  IMPLEMENTS,  exemption  of,  506. 

TRANSFER, 

of  criminal  case,  699. 

of  personal  property,  void,  591-607. 

of  prisoners,  74S -750. 
TRESPASS,  liability  of  officer,  631. 
UNDER  SHERIFF,  54a. 
UNDERTAKING, 

to  release  attachment,  292-3. 

to  release  execution,  401. 
UNDIVIDED  INTEREST,  transfer  of,  604. 
I'NITED  STATES  PRISONERS  in  jails.  747. 
VACANCY, 

by  conviction  of  offense,  75. 

how  filled,  77. 

when  exists,  69,  70. 


1  .\  1 )  !•;  x . 

VESSELS, 

attachment  of,  238-9. 

execution  sale,  426. 

service  of  summons,  109. 
VOID, 

levy  of  attachment,  247. 

order,  disobedience  of,  379- 

sheriff's  deed,  573. 

writs  of  execution,  352-5. 
VOIDABLE  WRITS,  352,  355. 
WAIVER. 

of  certain  liens,  321. 

of  sheriff's  jury,  285. 
WARRANT, 

arrest  without.  682. 

on  habeas  corpus,  721. 

service  in  another  county,  694. 

should  name  defendant,  693. 

when  to  be  shown,  683. 
WEAPONS,  taking  from  prisoners,  6S9. 
WIFE, 

execution  against,  415. 

gift  from  husband  to,  416. 
WITHDRAWAL  of  sureties,  76. 
WITNESSES, 

expenses  of,  142,  153. 

exemption  from  arrest,  144,  159,  7oSa. 

production  of  prisoners,  710. 

subpcjL-na  for,  133-152. 
WORKING  OF  PRISONERS,  756,  756a. 
WRECKS,  duties  of  sheriff,  32. 
WRIT, 

delay  in  service,  26,  26a,  61,  11 1-2,  241-2.  350 

cnclorsement  of  receipt,  22. 

of  assistance,  657-665. 

of  injunction,  198-201. 

of  n-stitution.   666-680. 

receipt  on  holiday,  64. 

regularity  of,  56,  204,  352-3,  377. 

service  by  teloi;r;iph,  65. 


INDEX   OF    FORMS. 

I.    RETURNS. 

ASSISTANCE,  writ  of,  S21. 
ATTACHMENT, 

personal  property  in  custody,  806. 

real  property  in  defendant's  name,  occupied,  S08, 

real  property  in  defendant's  name,  no  occupant,  Soy. 

real  property  in  name  of  third  party,  8ro 

undertaking  given,  S07. 
CERTIORARI,  821a. 
CITATION,  825. 

EXECUTION, 

personal  property,  sold,  814. 

real  property,  sold,  815. 
FORECLOSURE,  816. 
GARNISHMENT, 

on  banking  corporation,  813. 

on  individual,  statement  made,  811. 

on  individual,  no  statement,  812. 

HABEAS  CORPUS, 

prisoner  in  custody,  828. 

prisoner  released  on  bail,  829. 

prisoner  held  pending  appeal,  831. 

prisoner  held  on  oral  charge,  830. 

prisoner  held  by  U.  S.  Court,  832. 

service  of  writ  on  third  party,  720. 
INJUNCTION, 

service  upon  individual,  826.      ' 

service  upon  supervisors,  827. 
II- RV  VENIRE,  S38. 


INDKX    OK     lORMS. 

ORDER  OF  ARREST, 

arrest  and  bail,  S37. 

prisoner  admitted  to  on  bail,  836. 
REPLEVIN, 

property  delivered  to  plaintiff,  817. 

property  redelivered  to  defendant,  Si 8. 
RPISTITUTION,  writ  of,  819,  820. 
SEARCH  WARRANT,  823. 
SUBPOiNA, 

in  civil  case,  803. 

in  criminal  case,  805. 

service  by  citizen,  804. 
SUMMONS, 

administrator,  defendant,  797. 

defendant  not  to  be  found,  799. 

executor,  defendant,  797. 

toreig-n  corporation,  796,  note. 

from  justice's  court  of  another  county,  802. 

insane  person,  defendant,  79S. 

local  corporation,  796. 

minor  defendant,  797. 

non  est  inventus^  799. 

one  defendant,  793. 

service  by  citizen,  800. 

service  by  constable,  801. 

several  defendants,  794. 

some'defendants  not  served,  795. 
VENIRE  for  jurors,  838. 
WARRANT  OF  ARREST, 

prisoner  in  custody,  833. 

prisoner  released  on  bail,  834. 
WRIT  OF  ASSISTANCE,  821. 

WRIT  ov  Ri:sriTr  riON,  819,  820. 


I.NDKX    (Jl-     IdKMS. 


II.  OFKICK  FORMS. 

AFFIDAVIT  to  inventory,  search  warrant,  N24. 
ANSWER  to  garnishment,  843. 
ASSIGNMENT  for  benefit  creditors,  S70. 
BONDS, 

receiver  in  insolvency,  867. 

of  indemnity  on  attachment,  851. 

of  indemnity  on  execution,  853. 

CERTIFICATES, 

foreclosure  sale,  862. 
redemption  of  real  estate,  863, 
sale  of  personal  property,  855. 
sale  of  real  property,  861. 
surrender  of  prisoner  by  bail,  835. 

(tARNISHMENT, 

notice,  generally,  S42. 
notice,  corporate  stock,  845. 

GRAND  JURY  summons,  875. 

KEEPER'S  RECEIPT  to  sheriff,  844. 
NOTICE, 

of  attachment,  garnishment,  842. 

of  attachment,  real  property,  847. 

of  creditors'  meeting,  869. 

of  levy,  real  estate,  857. 

of  sale  of  real  property,  execution,  858. 

of  sale  of  real  property,  foreclosure,  859,  s6o. 

of  sale  by  commissioner,  860. 

of  U.  S.  Land  office  contest,  840. 

receiver's  sale,  868. 

ORDER, 

for  attachment,  personal  property,  841. 

for  attachment,  real  property,  846. 

for  levy  and  sale,  personal  property,  852. 

for  levy  and  sale,  real  property,  856. 

for  release  of  attachment,  848. 
RECEIPTS  to  sheriff,  864.      • 


IN  DFX    Ol'     FORMS. 

REQUISITION, 

affidavit  for.  S72. 

application  for,  87 1. 
SPECIAL  JURY,  summons,  874. 
SEARCH  WARRANT.  822. 

SHERIEF'S  LW'ENTORV,  property  attached,  844. 
STATEMENT. 

of  fees  to  auditor  .monthly),  876. 

of  fees  to  auditor  (semiannual),  877. 

of  jailer,  prisoners  confined,  878. 
TRIAL  JURY  summons.  S73. 
UNDERTAKING. 

in  release  of  attachment,  850. 

to  prevent  attachment,  S49. 


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